| The law of punitive damages for trademark infringement is essentially an aggravating damage system,which is rooted in common law.Its main purpose is to punish the infringer and deter the recurrence of similar behavior.In order to reverse the unfavourable situation,which caused wanton infringement and unwillingness of right saving,that it costs a lot for right holders to safeguard their rights while the cost of infringers is low due to the difficulty of proving in trademark infringement cases,the regulation of punitive damages was added in the Chinese newly revised trademark law in 2013,which was a significant innovation.However,strictly,only 10 cases applied the punitive damages so far in China,which is clear that this system did not work well in guidance and adjustment.The punitive damages system for trademark infringement in China has many problems,which seriously influence the application of the law.This thesis focuses on two aspects.Firstly,it summarizes the problems existing in punitive damages system for trademark infringement in China.Secondly,it discusses the solutions of the problems.The system of punitive damages for trademark infringement has some discrepancies with the concept of civil compensation that China has consistently followed.This system also aroused questions and discussions before and after it was added into the Chinese Trademark Law.Since it has beenformally incorporated into the law,the research in this paper will mainly focus on the system perfection,and will neither involves the discussion on the rationality nor the existence and abolition of the system.This article is divided into four chapters.The first chapter analyzes the legislative status,application status,and existing problems of the punitive damages rules for trademark infringement in China.The main reason why the punitive damages system for trademark infringement in China is difficult to apply is that,firstly,the connotation of the requirements of the punitive damages system for trademark infringement is unclear;secondly,whether punitive damages for trademark infringement can be applied to cases which are judged according to the rule of statutory compensation is in doubt.The former directly leads to the difficulty of application,and the later leads to a narrow scope.Two reports,which are respectively made by Changsha Intermediate People's Court and People's Court of Nanjing Railway Transportation,show that the applicable rate of statutory compensation is maintained at roughly 98% in Chinese trademark infringement cases,which has a significant impact on the application of punitive damages.In addition,there is an implicit problem,which does not affect the application rate,but affects the judicial fairness.The calculation of punitive damages for trademark infringement adopts the “base×multiple” mode.The base is compensatory damages(except for statutory compensation),and the multiple ranges from 0 to 2,which is determined by the judge based on his discretion.Just put aside the problem of base,focusing on the problem of multiple,what are the factors to consider when determining the multiple? How to make a comprehensive evaluation? The law doesn't mention anything.The big discretion is often not the core of the problem,the crux is that judges have a great discretion,and the exercise of the power is difficult to be supervised by the public.Chapter two of this article mainly discusses the difficulties in applying punitive damages for trademark infringement in China.First of all,this article defines the connotation of the applicable requirements.This paper argues that the applicable requirements of the punitive damages fortrademark infringement in China include three aspects.First,the fact of trademark infringement is established.Second,the infringer's subjective state is malicious.Third,serious circumstance.There is not much controversy about the establishment of infringing facts.Regarding the other two requirements,this article argues that“malicious” is similar to the meaning of “intentional”,and “malicious” emphasizes such subjective state that the infringer knows clearly that the act is not good,but he chooses to do.“Serious circumstances” refer to the fact that the circumstances of the objective infringement are serious,and may mainly include four aspects.First,the amount of illegal business operations or compensatory damages exceeds a certain value.Second,trademark infringement for several times.Third,may have negative impact on people's health.Fourth,others.Meet one of the conditions above is enough.Secondly,this article discusses the problem of the position of punitive damages in the statutory compensation cases,and holds that the current Chinese Trademark Law doesn't support the application of punitive damages in statutory compensatory cases.This paper argues that it is necessary to expand the scope of punitive damages for trademark infringement.The application of this regulation in statutory compensation cases is in accordance with the logic of law and has important practical significance.This paper has made response to academic questions.In view of the practical obstacle that this system applies to the statutory compensations cases,that is,the repeated evaluation of the subjective factors and the arbitrariness of the statutory compensation,this paper puts forward two proposals.Firstly,no longer regard the subjective state of the infringer as a factor for determining the amount of statutory compensation.Secondly,with reference to Zhejiang Provincial Higher People's Court's practice in the case of Siemens trademark infringement,or the Chapter 3 and the Appendix of this article,using the method of AHP to determine the amount of statutory compensation.Chapter three of this article mainly discusses the reasonable determination of the amount of punitive damages for trademark infringement in China,and this part will be divided in two parts.First,the factors to determine punitive damages for trademark infringement.Second,the method of comprehensive evaluation.As for the factors ofconsideration,this paper holds that the factors that reasonably determine punitive damages for trademark infringement should include three aspects: malice,serious circumstance and infringer's economic situation.The “Malicious” category includes similarity of trademarks,similarity of goods or services,the intentional degree of the infringer and the purpose of the infringement.The “serious circumstance” category includes the possibility of causing negative impact on people's health and trademark infringement for several times.The “infringer's economic situation” category includes the infringer's net assets and the infringer's income ability.To increase factors,we can refer to the category of “others”.As for the method of comprehensive evaluation,this paper refers to the practical experience of the Zhejiang Provincial Higher People's Court in reasonably determining the amount of statutory,and holds that we can use the method of AHP to determine the multiple of punitive damages.The detailed method and operation are discussed in Chapter 3 and the Appendix.On one hand,the Analytical Hierarchy Process can not only intuitively and clearly sort out the importance of each evaluating factor,but also fully display the process of comprehensive evaluation,which is beneficial to social supervision.On the other hand,the AHP can transform the problem of multi-factor comprehensive evaluation into the problem of single factor evaluation,to solve the difficulties that the human brain faces in dealing with the problem of multi-factor comprehensive evaluation,to minimize the fatal impact of bias on the result and to obtain a reasonable multiple of punitive damages.Chapter four is the summary of the full text,in which suggestions are put forward on perfecting the punitive damages system for trademark infringement in China,including three parts: First,to expand the scope of punitive damages for trademark infringement to cases which are judged according to the rule of statutory damages;Second,to clarify the connotation of the applicable requirements of punitive damages for punitive damages,which mainly involves the definition of “malicious”and “serious circumstances”;Thirdly,to clarify the evaluating factors when deciding the mount of punitive damages for trademark infringement,and reasonably decide the multiple with the help of Analytical Hierarchy Process on this basis.The innovation of this article is mainly reflected in three aspects.First,this article insists that punitive damages should also be applied to cases of trademark infringement which are decided according to the rule of statutory damages,and discusses methods to overcome barriers.Second,this article sorts out the applicable requirements of punitive damages for trademark infringement in China.The connotation of “malicious” has been rationally defined,and the connotation of“serious plot” has been classified and summarized in this article.Third,to solve the problem of comprehensive evaluation,this article introduces the method of “Analytic Hierarchy Process” as a tool to help judges decide the multiple of punitive damages for trademark infringement. |
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