Calculation Of Actual Loss In Unfair Competition Tort Damages

By 2019,China's Anti-Unfair Competition Law has undergone three amendments,and determined actual loss as the preferred method for determining the amount of damages in unfair competition infringement damages.However,due to its lack of scientific and systematic guidance,poor-operability,so it is rarely used.According to the basic principles of civil tort damages compensation,the calculation of the amount of damages based on the actual loss of the right holder is undoubtedly in line with the purpose of China's civil tort legislation.However,in the case of unfair competition infringement damages,the actual loss calculation method is usually difficult to apply due to the difficulty of the right holder to prove.Except that China's law clearly stipulates that the right holder should be compensated for the loss,there is no specific stipulation on how to apply the actual loss calculation method in unfair competition infringement.The distribution of the burden of proof for the actual loss calculation method,the scope of the actual loss compensation,and the scientific specificity of the actual loss Methods are missing.The existence of these problems has greatly affected the application of the actual loss calculation method in the unfair competition tort damages compensation case.Sorting out and solving the above problems is the key to calculating the amount of damages for unfair competition infringement cases using actual loss.First of all,it is necessary to clarify the criteria for determining causality in unfair competition infringement damage cases.The method of proof of causality in US patent infringement cases can be used for reference.The four elements of Panduit are used to determine the factual causality and the predictability method to determine the legal causality In the distribution of burden of proof,the inversion of burden of proof is appropriately adopted,and the plaintiff's burden of proof is appropriately transferred to the defendant.Secondly,including the loss of goodwill and expected sales loss into the calculation of the actual loss of the right holder makes the calculation method of the actual loss more in line with the requirements of the principle of comprehensive compensation for civil torts and better fills the loss of the right holder.Finally,we will improve the calculation method of "actual loss" in China by drawing on the experience of foreign judicial practice to make it more scientific and reasonable.Specifically,we will use the calculation method of lost profit in US patent infringement cases to calculate the sales loss of right holders Calculate goodwill loss through professional assessment and other methods.