Research On The Determination Of Punitive Damages For Trademark Infringement

Article 63 of the "Trademark Law" amended in 2013 provides for malicious infringement of trademark rights.If the circumstances are serious,the court may determine the amount of compensation "more than one time and less than three times" of the amount of damages.The "Trademark Law" amended in 2019 ? Article 63 increases the range of multiples to “more than double and less than five times”.However,the legal provisions do not give clear criteria for determining “malicious”and “severe circumstances”.Trademark infringement is punitive in judicial decisions The question of how to determine the amount of compensation varies.Therefore,this article discusses the application of punitive damages in the trademark law and intends to answer the question of how to determine the amount of punitive damages.The first part is the empirical investigation of trademark infringement cases.The author counted 92 cases of trademark infringement punitive compensation,and summarized the judgment results and the reasons for the judgment.In 21 cases,the court found that the plaintiff had “maliciously” infringed trademark rights to the extent of “serious circumstances”,and punitive compensation was applied.Among them,there were only 5 cases that clearly defined the calculation standard and multiple of punitive damages.The remaining cases are all subject to statutory compensation,but in 20 cases,the court held that the applicable conditions for punitive damages were met,but punitive damages were not applied because the calculation base of punitive damages could not be determined or the plaintiff 's lawsuit demanded statutory compensation.In addition,this part also discusses the calculation model of punitive damages for trademark infringement: applying the actual loss,profit from infringement,and reasonable license fee for trademark as the base,determining the multiple according to the degree of "malicious" and "severe circumstances",and the amount obtained It is the determined amount of punitive damages.The second part discusses the determination of the base of punitive compensation for trademark infringement.Regarding the calculation of infringement losses,due to various reasons affecting sales in commercial activities,the plaintiff is more difficult to prove.At present,the calculation is mainly based on the sales volume of infringing goods and the unit profit score of the registered trademark goods.Regarding the calculation of infringement profits,two calculation formulas appear in practice,one is"infringement profit = quantity of infringing goods sold x(commodity unit price-product cost)",the second is "infringement profit = quantity of infringing goods sold × Commodity unit price × profit margin ”.With regard to the determination of the reasonable licensing fee for trademarks,two cases of refusal of application are used to analyze that the trademark licensing fee needs to be applicable to the case when the conditions such as permit time,permit scope,and permit conditions are similar.In addition,it also analyzes the nature of statutory compensation as an alternative way of calculating actual losses,while punitive damages are based on actual losses and cannot be used as the basis for calculating punitive damages.The third part discusses the determination of the multiple of punitive damages for trademark infringement."Malicious" and "serious plot" are descriptions of the subjective fault of the infringer and the plot of the infringement,respectively,which can be understood as "intentional infringement with serious plot".Afterwards,by summarizing the reasons for the referee,from five aspects:(1)the distinctiveness and popularity of the trademark;(2)the closeness of the relationship between the two parties;(3)the degree of damage to the trademark rights;(4)repeated infringement;(5)Special industry standards to analyze the impact of "maliciousness" on punitive damage multiples,from three aspects:(1)the impact of torts;(2)the degree of damage to goodwill;(3)other violations,to analyze the "plot" The effect of "serious" on the punitive damage multiple.Finally,the factors to be considered in determining the multiple of the punitive damages for trademark infringement are obtained.The fourth part discusses the improvement of the calculation of punitive damages for trademark infringement.By referring to the practice in the US jurisprudence,the standard for determining actual losses is proposed,and it is recommended to clarify the distribution of the burden of proof of the infringement proceeds,and to refine the consideration factors for the trademark 's reasonable licensing fee,in order to improve the calculation standard of the base in trademark punitive damages.By summarizing the typical situation of judicial judgment,it is recommended to determine the trademark infringement punishment from six aspects of trademark popularity,the damage degree of goodwill,the impact of infringement,the harmfulness of infringement,the close relationship between the two parties and the degree of repentance of the infringer Multiple of sexual compensation.The conclusion part is based on the previous argument,and the final method for determining the amount of punitive damages for trademark infringement is obtained.It is also pointed out that this method may be applicable to the determination of the amount of statutory compensation.