Research On Judicial Application Of Punitive Compensation In Trademark Infringement Cases

In 2013,the Trademark Law was amended to include a punitive damages clause for trademarks.The effect of Article 63 of the Law in the practice of trials runs counter to the original intention of legislation.The cases of punitive damages in trademark infringement cases are negligible.The statutory compensation system has become a widespread practice for determining the amount of compensation in trademark infringement cases.Such a situation is not conducive to the protection of trademark owners.To this end,China urgently needs to put forward practical policies or opinions on the application of the punitive damages system.Through the method of literature research,the theoretical basis of punitive damages for trademark infringement is studied.Through the method of case analysis,we collected all trademark infringement cases that were revised and implemented in China in 2013 and ended on December 31,2018,analyzed 100 selected judgments and formed relevant data,and obtained trademark infringement cases in China.The number of applicable punitive clauses is small,and the second-instance maintains a high proportion of the original judgment.And the reasons for the lesser application of trademark punitive damages clauses are as follows:the application of statutory compensation for flooding,"malicious" and "serious circumstances" is vague and the parties are difficult to prove.The main solution is the problem that the application rate of trademark punitive damages is extremely low in the practice of judicial trials,and the specific measures for solving the problem of low application rate of trademark punitive damages clauses are drawn up.First of all,it is necessary to introduce specific operational norms that clearly define "malicious" and " serious circumstances" in judicial interpretation.The "malicious" identification standard can refer to the intentional subjective mentality,and the behavior of the infringer meets the specific situation,and it can be determined that the perpetrator has subjective "malicious".This paper innovatively identifies the "malicious" subjective mentality to assist infringement.This paper believes that"serious circumstances" can refer to the number of infringements,the scope of influence,the consequences of harm and the identification of social impact.Other scholars in the academic circles think that the "severe circumstances" can refer to the seriousness of the plot in the criminal cases of trademark types in the criminal law.This paper determines the factors of"serious circumstances" in a more in line with the perspective of civil law.Second,the practice of judicial trials must strictly limit the application of statutory compensation.This paper argues that statutory compensation can only be applied if the trademark owner can prove the existence of the trademark infringement and the damage amount is indeed difficult to prove.Other scholars only pointed out that they should limit the application of statutory compensation,but did not give specific advice on how to limit the statutory compensation.Finally,the judicial trial practice should unify the burden of proof.A system of expert supporters was added to emulate the presumption of loss theory in Japan and Germany.