Study On The Judicial Application Of Punitive Damages For Trademark Infringement In China

Under the new normal of increasing compensation for intellectual property protection,the punitive damages for trademark infringement has been introduced and promoted.However,in the five-year empirical study,it is found that there are cognitive differences in the aspects of procedure initiation,determination of constituent elements and so on in the trial practice.There is a huge gap between the low application of the system and the high expectation.Therefore,the phenomenon that the infringer's infringement is rampant and the trademark owner's gain is not worth the loss is still serious.As a result,the new trademark law of 2019 expands the punitive damages multiple to one to five times,which further enhances the punishment of malicious infringement.However,high multiple may not cure the root cause when the application barrier has not been broken,but it may lead to the risk of improper application,such as the expansion of discretion and chilling effect.Therefore,in the context of the new revision of the law,the feasible way to give full play to the function of system is still to make efforts to make it get social response and the fundamental method is still to make a positive judicial response.As for the basic position,the auxiliary position of punitive damages should be clarified and the rational application concept should be followed to make the punishment fit the crime;In the process of starting the procedure,we should adhere to the principle of giving priority to the application of the parties and the judge's careful interpretation as a supplement;In the process of identification,it is advisable to adopt the standard of "will or active pursuit" to judge the malicious state,and to measure the seriousness of the circumstances around the state of "objective infringement facts".On this basis,the type of evaluation factors should be stipulated as soon as possible to unify the judgment standard;In the determination of calculation base,legal compensation should be excluded from the calculation base.And the court is encouraged to increase the amount of compensation to play the role of substitute punishment when the base can not be proved but punitive conditions appear in the application of legal compensation;On the selection of calculation coefficient,try to introduce "analytic hierarchy process" to enhance the rationality of multiple determination;On the writing of judgment documents,the refinement level of judgment documents should be improved to give full play to its guiding effect.