Research On Punitive Damages For Trademark Infringement

The fourth amendment of China's trademark law raises the upper limit of multiple of punitive damages from three times to five times,and the upper limit of legal damages from three million to five million.The Supreme People's court defines the subjective and objective conditions of applying punitive damages in civil cases of infringement of intellectual property rights.As a special way of civil damages,punitive damages have the functions of punishing the infringer,compensating the infringed's losses,preventing the recurrence of infringement and improving the infringed's enthusiasm to safeguard their rights.The determination of the subjective mentality of the infringer in the United States,the distribution of the burden of proof in Germany,and the calculation method of compensation and damages in Taiwan of China are worthy of our reference.Although the application rate of trademark punitive damages system in judicial practice has increased,it is still in a low state.The substantive conditions of punitive damages are not clear,and the identification of "malicious" and "serious circumstances" is vague,which helps the infringer not be included in the scope of punitive damages;the calculation method of compensation base is single,the identification standard of evidence in traditional civil litigation is too high,and the lack of protection of trade secrets in litigation results in the trademark obligee's delay in providing evidence;the current law does not specify punitive damages The standard of compensation multiple and the current upper limit of punitive compensation multiple can not meet the needs of practice.It is necessary to refine the substantive conditions of punitive damages,including helping infringers into the scope of application of punitive damages;relax the standard of proof,mobilize the enthusiasm of proof,and add expert assistants to help determine the loss of obligees when necessary in litigation;revise the trademark law for the fifth time,increase the upper limit of punitive damages to ten times,and follow the principle of over penalty and control The principle of total amount makes clear the value range and measurement standard of punitive damages multiple,and at the same time pays attention to the value of goodwill.