Study On The Calculation Base Of Punitive Damages For Trademark Infringement

At present,with the continuous deepening of the implementation of the national intellectual property strategy,the protection of intellectual property has also moved to a new level.As the most severe compensation system,punitive damages is regarded as a powerful measure to protect intellectual property rights.However,it has been nearly ten years since the introduction of punitive damages in the trademark law.Throughout this decade,there are few cases of punitive damages in trademark infringement disputes.There are two main reasons: First,the connotation and situation of the subjective and objective elements of "malicious" and "serious circumstances" are not clear;The second is the applicable premise of punitive damages,that is,the calculation base is difficult to determine.In 2021,the new interpretation of the Supreme People’s Court on the application of punitive damages in the trial of civil cases of infringement of intellectual property rights made detailed provisions on "intention" and "serious circumstances",which solved the problem of unclear subjective and objective application elements to a certain extent.However,the problem that it is difficult to determine the calculation base has not been solved.Therefore,to study the calculation base of punitive damages and clarify the existing problems is the key to solve the difficulties in the application of punitive damages.This paper is divided into four chapters to discuss the calculation base of punitive damages for trademark infringement.The first chapter puts forward the problems existing in the calculation base of punitive damages in current trademark infringement disputes.The author collected the cases of punitive damages in trademark infringement disputes from 2013 to 2021,and sorted out the calculation and identification of the calculation base.Combined with the relevant provisions of the trademark law and its judicial interpretation,it is found that there are the following problems in the judicial application of the calculation base of punitive damages: First,the use of quantity calculation methods is not unified;Second,the determination of statutory damages as the calculation base is different.These problems can be summarized as the non-standard calculation of the calculation base and the non-uniform determination of the calculation base.Therefore,the demonstration content in the next two chapters is also carried out in this way.The second chapter analyzes the calculation rules of actual losses,infringement profits and license fee multiples.The first is that the legislation of actual loss and infringement profit is too simple,which leads to the deviation in the determination of the amount of the two in judicial practice.Secondly,the unit profit in the calculation rules of actual loss and infringement profit is lack of further explanation,resulting in different calculation basis under the same calculation formula.Moreover,the "multiple" provision of the license fee has the nature of punishment,so the "multiple" as the calculation base violates the principle of excessive punishment.The third chapter discusses the relationship between statutory damages,discretionary damages and punitive damages.First of all,statutory damages is a system independent of compensatory compensation.It is a relief means to solve the problem that the three quantitative calculation methods can not determine the amount of compensation by setting up another compensation method in the substantive law,and it also has punitive factors in practice,which is not compensatory compensation.Therefore,it shall not be used as the calculation base of punitive damages.Then it discusses the discretionary damages.Discretionary damages is a calculation method different from statutory damages.It is to determine the required calculation data by reducing the standard of proof to obtain the final amount of compensation.In fact,the amount is calculated by the quantitative calculation method,which is in line with the principle of compensation and can be used as the calculation base of punitive damages.The fourth chapter is the suggestions to improve the calculation base of punitive damages for trademark infringement.Suggestions are given from the two perspectives of nonstandard determination of the calculation base of punitive damages in trademark law and difficulty in determination.In view of the non-standard calculation rules,the author believes that it needs to be improved through legislation.The recognition scope of the actual loss should be expanded,and it is not suitable to only calculate the lost interests of the reduction of sales,otherwise it can not be applied to the compensation of different types of trademark infringement.For the infringement profit,the profit contribution rate should be added as the calculation basis,and it is improper to take the profit of all infringing goods as the amount of compensation without considering other factors other than the infringement,which expands the amount of compensation of the infringer.As the "multiple" of the license fee is punitive,the "multiple" should be deleted and the double license fee should be used as the calculation base.The second is to clarify that the unit profit in the actual loss and infringement profit should be the operating profit,and the unified calculation standard.In view of the problem that it is difficult to identify the calculation base,the author believes that it can be solved through the dimension of procedural law.The first is to improve the rules of evidence disclosure.Only under the rules of evidence disclosure can the system of obstruction of proof play its effect.The second is to reduce the standard of proof.Intellectual property is intangible,which makes it difficult to calculate the amount of compensation under the standard of "high probability".The author believes that under the condition that the proof constitutes infringement,the standard of proof can be appropriately reduced to determine the calculation data,so as to solve the problem that it is difficult to determine the calculation base.