| Article sixty-third of China's current Trademark Law stipulates how to determine the amount of compensation in trademark infringement cases.The law lists five ways to determine the amount of damages,including the actual loss of the obligee,the interests obtained by the infringer from the infringement,reasonable times of trademark license fee and statutory compensation,and the punitive damages for malicious infringement of trademark rights.According to the law,there are strict restrictions on the order of application of the first four kinds of compensation methods,and the latter can be applied only when the former method is not applicable.It has a fallback and complementary of the application of the statutory compensation.It is a method to compensate the loss of the obligee when the first three kinds of compensation methods are not applicable.In addition,no matter we use which way to determine the amount of compensation in the above five ways,the final amount of compensation should include the reasonable expenses paid by the obligee to stop the infringement.The provisions of the law are clear,but in practice it is not very uniform because of the differences of understanding.There is a strict compensation order of the provisions of the law.In practice,the judge seems to give the option to the obligee or give the decision power to himself.Statutory compensation itself is supplementary compensation,but it has been widely used in practice,almost becoming the main way of compensation.There are some differences of the law when we applied in practice,such as Whether reasonable expenses are listed separately,and whether there must be evidence supporting.Therefore this article takes New Balance trademark case as an entry point,combined with the data of 225 judgments,to investigate the problems in practice about the amount of compensation for damages of trademark infringement.And I will offer some proposals to solve these problems,expecting it is helpful to improve law of the amount of damages for trademark infringement in China.This paper is divided into five parts.The first part is to put forward the problem.It's a brief introduction to the New Balance trademark case and the court decision.To present three questions which will be discussed in this paper,including the way to determine the amount of damages,the application of statutory compensation and the issue of reasonable expenses.The second part is about how to determine the amount of damages.It mainly contains the evolution of the system of determining the amount of compensation for damages in China,the advantages and disadvantages of the five kinds of compensation methods,and the regulations of the foreign compensation methods.I hope we can see the application of compensation methods from this case.And we can find it is unreasonable of the current provisions on the order of compensation.We should improve the law.The third part is about the application of the legal compensation.This thesis mainly introduces the origin of the legal compensation system.According to the data collected,I explained these issues.Including the applicable generalization of statutory compensation in China,the great right of judges' discretion and the low amount of compensation,the lack of reasons to determine the compensation,and the unknown procedure of the compensation.Then the thesis introduces the legal provisions of foreign countries in order to improve the legal compensation system in China.Finally,I combined with the case cited in this paper to explain the application of compensation.The fourth part is the analysis of the reasonable expenses.In this part,firstly it introduces the regulations of our country about the reasonable expenses.And then it analyzes the current situation of the application of the reasonable expenses.There are something unclear about the reasonable expenses,such as whether it should be listed separately and whether it should be supported by the evidence.Then it introduces the foreign regulations on reasonable expenses.Finally,this thesis uses the case to explain the application of reasonable expenditure.The fifth part puts forward some suggestions for the improvement of the legal system and the reasonable compensation in practice.This paper argues that the right of compensation should be given to the obligee.The application of statutory compensation should follow the principle of comprehensive consideration.It should close to the principle of real damage and refine the applicable standards of statutory damages.We should divide the range.The reasonable expenses should be listed separately when determining the amount of compensation,and the standard of proof should be reduced to the necessary reasonable expenses.The fifth part puts forward some suggestions for the improvement of the legal system and the reasonable compensation in practice.This paper argues that the right of compensation should be given to the obligee.The application of statutory compensation should follow the principle of comprehensive consideration.It should close to the principle of real damage and refine the applicable standards of statutory damages.We should divide the range.The reasonable expenses should be listed separately when determining the amount of compensation,and the standard of proof should be reduced to the necessary reasonable expenses. |
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