The Law Applicable To Punitive Damages For Trademark Infringement In China

In recent years,the number of trademark infringement cases has increased year by year,and the rights awareness of trademark owners has been improving.The new trademark law of China has stipulated the punitive damages system for the first time.The system of punitive damages refers to the compensation for the infringer with malicious and serious infringement circumstances,which is more than the actual profit of the infringer or the actual loss of the trademark owner.However,it is worth studying and discussing whether punitive damages are effectively implemented.We have selected 37 cases of punitive damages which apply to the new "trademark law" and analyze it as a sample.It was found that all 37 cases adopted the legal compensation system to determine the amount of compensation.There are 7 case courts consider the factors of punitive damages when applying the principle of legal indemnity.Through the concrete analysis of the case,the following problems are found in the punitive damages of trademark infringement in China: the legal indemnity is applicable to generalization and the "punitive" feature is becoming more and more obvious;the court lacks the unified standard in the "malicious" and "serious plot";it is difficult to calculate the loss of the right person and the interests obtained by the infringer;the use fee of trademark license can not be referenced in practice.In contrast to other countries and regions,the United States,Canada,and Taiwan stipulate punitive damages system.Combined with the provisions of punitive damages for intellectual property in the preceding countries and regions,punitive damages system is mainly applied to infringers' deliberate infringement.The law will stipulate the maximum limit of punitive damages.The other will determine the amount of punitive damages according to the multiple of the amount of compensatory compensation.We should refer to the practice of other countries and regions and to improve the legal application of punitive damages for trademark infringement,in combination with the actual conditions of the country.We should rationally divide the relationship between statutory damages and punitive damages,refine the standard of "malicious" and "serious plot",reduce the burden of proof of the right holder and confirm the calculation method of punitive damages.