Research On The Application Of Punitive Damages For Trademark Infringement In China

In the absence of rules,principles can be applied to interpret the rules and fill the loopholes.Faced with the dilemma of insufficient supply of rules for the punitive damages system for trademark infringement in China,which affects the application of the law,this article draws some conclusions for improving the application of punitive damages for trademark infringement in China through the introduction of the principle of proportionality: malice in the constituent elements should be direct intent,and the severity of the circumstances should be limited to the actual loss of the right holder;the base amount of punitive damages should be limited to the filling damages,and the selection of multiples should be limited by The degree of aggravation.The main body of this article is divided into three chapters.The first chapter,through a textual analysis of 229 adjudicative documents in which parties claimed the application of punitive damages for trademark infringement,finds that there are very few cases in which the people’s courts have upheld the claims of right holders and applied punitive damages.The biggest obstacle to the application of punitive damages lies in the difficulty of proving the base amount of damages,followed by the disadvantageous proof of the two constituent elements of "malicious infringement" and "seriousness of the circumstances" by the right holder.In further summarising the elements of cases where punitive damages have been applied by the courts,it was found that the understanding and application of "malicious infringement" and "aggravated circumstances" varied greatly from court to court due to the absence of detailed rules,and that courts have determined the multiplier of the amount of damages to be awarded in serious cases.The lack of arguments or insufficient reasoning for the choice of damages has affected the good operation of the punitive damages system.The first chapter of this paper presents three questions to be addressed: 1.how to interpret and determine "malice" and "aggravating circumstances";2.how to apply the base amount of punitive damages;and 3.what factors should be taken into account in determining the multiplier?Chapter 2 examines the development of the US punitive damages system,focusing on the origins of punitive damages in the US,the characteristics of the different periods of development and the latest developments in the field of IPR damages,and finds that limiting the application of punitive damages is the prevailing practice in the US.At the same time,the author finds that the principle of proportionality can be used to address many of the issues of the constitutive elements of punitive damages,the base amount,and the determination of multiples in this article.The introduction of the principle of proportionality has an important guiding value for the improvement of the punitive damages system for trademark infringement in China: it can guide the determination of the constituent elements of punitive damages for trademark infringement when the rules are imperfect,it can guide judges in reasonably determining the base amount of punitive damages,and it can limit the discretion of judges in determining the multiplier of the award in order to enhance the quality of adjudication.Chapter 3 This chapter is a chapter on the application of the principle of proportionality to solve practical problems in punitive damages for trademark infringement in China.When finding malice,it should be limited to direct intent,the most serious form of subjective fault,to match punitive damages,the most severe form of civil liability,and presents the manifestations of malicious infringement,reflecting on some of the practices in China’s judicial practice.In finding aggravated circumstances,subjective malice should not be repeatedly evaluated;from the perspective of the interpretation of the legislative purpose of trademark law,the finding of aggravated circumstances should not take into account the infringement of non-trademark rights holders such as the legitimate rights and interests of consumers and social public welfare by trademark infringers;and with reference to the criteria for finding aggravated circumstances in public law,the quantitative criteria for finding aggravated circumstances in punitive damages are proposed;through the refinement of the quantitative criteria for aggravated circumstances,the By refining the quantitative standard of aggravation,the view of correlating the degree of aggravation was proposed.In determining the base of punitive damages,in order to avoid duplication of evaluation and violation of the principle of proportionality,the basic principle of filling damages as the base of punitive damages should be adhered to,and "quasi-punitive damages" should not be included in the base;for the difficulty of proving the base,the rule of excluding evidence can be applied to alleviate the difficulty of proof for the right holder.