The Research On The Determination Of The Damages Of Trademark Infringement

The value and significance of trademark have been recognized by more and more people. Thus improving the legal protection of trademark owners and promoting national economic prosperity in trademark field have been important guarantees for national economy's development. From the perspective of the determination of the amount of trademark infringement compensation, this paper attempts to explore the problems by learning from the excellent legislation & judicial experience abroad and improving the legislation of damages determination in trademark field, so as to promote the legal protection progress of trademark owners.In addition to the introduction and epilogue, this paper is divided into four parts.The first part is the basic theory study of trademark infringement, which mainly consists of three aspects. Firstly, the introduction to trademark right protection theories. Trademark right protected by law is an important prerequisite for judging trademark infringement. Based on the debate of trademark protection between foreign Chicago School and Harvard School, this paper explores that trademark protection is in line with the times and necessary, and explains that the essence of trademark protection is to protect the distinctiveness of trademark from the development of trademark protection theory. Secondly, the summary of the principles of trademark infringement compensation, which points out that principle of compensation for damage is the guarantee to remedy function of damage compensation system and concludes that the principle of compensation for damage is mainly for filling the loss while punishing is just replaceable from the comparative study of filling principle and punitive compensation principle. Thirdly, the author will explore the rationality of determination of the amount of damage for trademark infringement. This paper describes the significance of protecting trademark owners from its necessity and possibility.The second part is the analysis of current legal situation of trademark infringement compensation determination in our country. This part is divided into two parts. In the first part, the author introduces our legislation related to the determination of the amount of compensation by ways of vertical analysis and horizontal comparison. After this, she will evaluate and analyze the disadvantage of current legislation: there are no recognized standards and specific regulations for operational approach. The second part, the author analyzes the judicial practice of compensation for trademark infringement according to case studies and data statistics. It can be concluded that the situation where applying compensation is more common and the amount of damage is very low. Through analysis, the author is aimed at finding out problems of determination of the amount of trademark infringement compensation in practice so as to put forward approaches to these problems on case-by-case basis and come up with some suggestions on how to improve the relevant legislation.The third part is a comparative study of trademark infringement compensation determination at home and abroad. Compared with the judicial practice in China, this part focuses on the differences of four different scopes of law and its experience is reference to develop and improve the relevant legislation and guide the judicial practice in our country.The fourth part is the suggestions for improving the rules of trademark infringement damage compensation. The author will give suggestion from the aspect of legislation, judicature and concept. Firstly, with regard to legislation, our country shall refine the relevant legislation and regulation of determining the amount of damage compensation, deepen the standards of determination of damages, and clarify the considerations& factors. Secondly, we shall flexibly collect the evidences of trademark infringement. Based on the current rules of evidence in our civil procedure, we shall combine system of evidence disclosure & system of proof hamper and improve expert advisor system and find main facts of cases from the principle of preponderance of the evidence. Thirdly, we shall establish right concepts reasonably. We should clarify the requirements& considerations for statutory compensation system and make good use of the advantages of this system effectively and avoid the abuse of it,so as to fully protect the interests of trademark owners.