Research On The Relationship Between Punitive Damages And Legal Damages For Trademark Infringement

China's protection of intellectual property rights has been strengthened year by year to create a better legal environment for business?The protection of trademark right is also more and more valued and emphasized?In 2019,the new trademark law will make important changes to the compensation for trademark infringement,changing the amount of punitive damages from "more than one time and less than three times" to "more than one time and less than five times",and changing the maximum legal compensation from "three million yuan" to "five million yuan",which has aroused public concern ?The relationship between punitive damages and legal damages is not clearly defined in Chinese legislation,that is,whether punitive damages can be used in legal compensation cases?The lack of legislation leads to the problem of how to deal with the relationship between punitive damages and legal damages when the court adjudicates trademark infringement cases in judicial practice?The academic circle also holds the different viewpoint to this?In China,the content related to trademark infringement compensation is stipulated in article 63 of the trademark law?The first half of the first paragraph of this article refers to compensatory compensation,which includes the actual loss of the right holder,the benefit of infringement and the reasonable multiple of the trademark license fee,and the application of the three is in a sequence.Punitive damages refers to the compensation made by more than one time and less than five times of the above three kinds of compensatory damages when the infringer has a malicious infringement and the circumstances are serious.Statutory compensation in the third paragraph of this article,is in the compensatory compensation is difficult to calculate,the judge according to the infringement of the circumstances,comprehensive consideration of the factors made by the compensation.The relationship between punitive damages and legal damages is not clearl y defined in Chinese trademark legislation.Concrete expression is in,it is legal compensation nature is unknown above all.Since the introduction of punitive d amages in China,the nature of legal compensation is compensatory damages or punitive damages,and no provisions have been made in China's trademark legislation.Secondly,there is a certain degree of overlap between the factors of le gal compensation and the applicable conditions of punitive damages.According t o China's laws and judicial interpretations,the factors of legal compensation in clude the subjective factors of the infringer and the circumstances of infringem ent,which are also the applicable conditions of punitive damages for trademark infringement in China,and there is no stipulation on how to distinguish them in the specific application.Finally,the punitive damages for trademark infringe ment are made when the infringer is subjectively malicious and the circumstan ces are serious,and it is not stipulated whether the legal damages in accordan ce with the applicable conditions of punitive damages can be used as its calcul ation base?Because of the above problems in the legislation,in the judicial practice of our country,when dealing with trademark infringement cases,there are some problems such as the courts' emphasis on malicious and serious factors in the application of legal compensation,the combination of punitive compensation and legal compensation,and the judges' general explanation of the judgment compensation in the judgment documents.As a result,the interests of trademark owners are not adequately protected.In order to coordinate the relationship between punitive damages and legal damages for trademark infringement,China's legislation to make the following aspects of improvement:First of all,To make clear the nature of legal compensation still belongs to compensatory compensation.From the perspective of the evolution of old and new laws,the compensation principle of Chinese trademark law before the introduction of punitive damages is based on the traditional civil compensation,and the final purpose is to fill the loss.Therefore,the attribute of compensatory compensation cannot be denied because of the increase of the upper limit.From the perspective of judicial practice in China,the application rate of legal compensation is high and the amount of judgment compensation is low.Therefore,in our country,the nature of legal compensation is still compensatory compensation rather than punitive compensation.Secondly,the subjective factor of infringer is no longer considered as the factor of legal compensation.When compensatory damages and punitive damages exist simultaneously in trademark legislation in China,the factors of legal compensation no longer include the subjective factors of the infringer.As for the specific application of punitive damages and legal damages,legal damages can be used as the calculation base of punitive damages.In judicial practice,it is necessary to scientifically apply the legal compensation system and further refine the factors for calculating the amount of legal compensation.In addition,the judge should strengthen the reasoning of the judgment documents,the judgment should try to explain the process of evidence confirmation in detail,give specific reasons for evidence acceptance or disacceptance,so as to further improve the trademark legislation of our country.