The Limitation Of Injunctive Relief For Infringement On The Exclusive Right To Use A Registered Trademark

As a major way of bearing civil liability,injunctive relief is the most commonly adopted remedy when infringement of the exclusive right to use a registered trademark occurs.However,the exclusive right to use a registered trademark is a private right when it has public policy objectives at the same time that aim to maintain the fairness of market competition.When infringement occurs,it involves the interests of the right owner,the infringer as well as third parties and the public.China's existing law is silent about the mandatory application of injunctive relief when the exclusive right to use a registered trademark is protected in a judicial way.Therefore,injunctive relief is not the necessary choice if it might result in severe damage on balance of interests.The court's judgment shall be based on the characteristics of the case after overall consideration since the process of interests balancing is so subjective that it does not have a universal standard.To be specific,the factors that the court should take into consideration are the contribution to the trademark value made by the infringer,the legality of right owner's use of the trademark,actual losses that the right owner has suffered,the value of the trademark as well as the impact of the trademark on consumers' behavior.When the injunctive relief is not available,the court should take alternative measures.It's time for the owner of the exclusive right to use a registered trademark to make a decision to choose the calculation method of compensation.