The Research On Trademark Punitive Damages System Based On Empirical Evidence

The original intention of introducing punitive damages system in trademark Law is to punish malicious infringement and protect the right to exclusive use of trademark.By selecting 100 sample cases and analyzing typical cases,it is found that the application of the punitive damages system for trademark infringement shows an increasing trend year by year as a whole.In spite of this,there are still some problems in judicial practice,such as low application rate,large dispute in the determination of constituent elements,and unclear determination of cardinal number.This is not conducive to the unification of standards in judicial practice and the formation of clear application expectations,but also detrimental to the punitive damages system in the protection of trademark rights to play its due role.The connotation of "malicious intent" should be limited to "direct intent",that is,the infringer takes such behavior even though he knows that his behavior will damage the right to exclusive use of the trademark of the right holder."Serious" refers to the evaluation of the objective state of the infringement,rather than the investigation of the subjective state of the perpetrator,and can be judged from the duration of the infringement,the number of times of implementation,the scale of implementation,and the monetary loss caused.In order to give full play to the role of the evidence disclosure system in determining the base,when the obligee has fulfilled the burden of proof to the maximum extent and the financial data related to the case is in the hands of the infringer,the claim of the obligee should be presumed to be established.Legal compensation can not become the base of punitive compensation,the reason is that legal compensation and punitive compensation belong to a parallel relationship,only when the lack of evidence can not apply punitive compensation system in the legal compensation to consider the punitive elements.In order to ensure the standardization and rationality of the application of punitive damages system,the Supreme People’s Court should regularly publish typical cases to provide necessary guidance and demonstration for judicial practice,and at the same time make clear the contribution rate of trademark in the calculation of punitive damages.