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

In order to strengthen the protection of the exclusive right to trademarks to create and maintain a good business environment,China has been actively exploring the punitive damages of trademark infringement.The trademark law,was the first to establish the punitive damages,which stipulates the people’s court can impose 1-3 times compensate,and the number has revised to 1-5 times in 2019,which shows that the political attaches great importance to promoting punitive damages for trademark infringement.In 2021,the Supreme People’s Court promulgated the interpretation on the application of punitive damages in the trial of civil cases of infringement of intellectual property rights,which provides guidance for the application of punitive damages for infringement of intellectual property rights.Based on the judgment documents that come into effect before 2021,this paper presents the application status of trademark infringement penalty compensation through retrieval and analysis.The total number of trademark infringement disputes in China has exceeded 250000,of which only 617 cases involve punitive damages,and only 31 cases further clarify the application of punitive damages and clearly calculate compensation.The application of statutory compensation is still dominant.There is such a big gap between the total number of cases applying punitive damages and those involving punitive damages.There are three main reasons for this phenomenon.Firstly,the applicable conditions of punitive damages are unclear;Secondly,it is difficult to calculate the amount of punitive damages;Finally,the main reason for the application of statutory compensation to punitive compensation lies in the confusion of the functions of statutory compensation and punitive compensation system,which leads to the over application of statutory compensation has not been solved.In view of the problems found,this paper puts forward suggestions respectively.First of all,we must make clear the applicable standard of punitive damages.We should also recognize the relationship between subjective factors and objective factors.We also need to exclude the situation that does not meet the elements.In determining the amount of compensation,the court provide necessary assistance for the plaintiff to obtain evidence;In the procedure,we should give full play to the effect of the proof obstruction,and try to get the accurate amount by calculation;When we choose the multiple of punitive damages,we should be reasonable and convincing,and at the same time,we should give play to the punitive and deterrent effect of punitive damages system.Finally,in order to solve the problem of excessive application of statutory compensation,the suggestions are to further limit the application of statutory compensation,clarify the standard of "difficult to determine" in the law,and then limit the discretion space of judges and improve the predictability of the statutory compensation system by classifying the amount of statutory compensation.