Study On The Subjective Elements In The Application Of Punitive Damages For Trademark Infringement

As an important intangible asset of enterprises,the commercial value of trademarks has become more and more important to enterprises,while the low cost of trademark infringement,the frequency of infringement,and the difficulty of rights protection have also attracted the attention of legislators.In order to protect the exclusive right of trademark more effectively and enhance the cost of infringement,Article 63 of the Trademark Law was amended for the third time in 2013,stipulating the elements of punitive damages for trademark infringement,namely "malicious infringement of the exclusive right of trademark with serious circumstances".However,there are different doctrines on the meaning of the subjective element of punitive damages "malice" and its relationship with "intent" and "gross negligence",and in practice,courts around the world have a different understanding of "malice".The understanding of "bad faith" is also not consistent in practice.This has led to the inconsistent application of punitive damages for trademark infringement and low application rate,which cannot effectively play the role of protecting trademark rights.In March 2021,the Supreme Court issued the Judicial Interpretation of Punitive Damages for Intellectual Property,which stipulates that intentionality in the Judicial Interpretation includes trademark infringement.In March 2021,the Supreme Court issued the Judicial Interpretation of Punitive Damages for Intellectual Property,which stipulates that "malice" in the judicial interpretation includes trademark infringement.This laid the institutional foundation for the unified application of punitive damages for intellectual property,but it also led to the inconsistent application of the subjective elements of punitive damages for trademark infringement in practice,with one part still relying on "malice" as the subjective element in Article 63 of the Trademark Law,and the other part directly relying on the provisions of the Punitive Damages for Intellectual Property,with "intent" as the subjective element."Intentional" as the subjective element.This paper studies the specific provisions on the subjective elements of punitive damages for trademark rights in China’s laws and regulations,relevant judicial interpretations and normative documents by using the literature analysis method;then uses the case analysis method to select relevant cases after the introduction of punitive damages in the Trademark Law as samples for empirical analysis,and focuses on the judicial cases after the implementation of the Judicial Interpretation of Punitive Damages for Intellectual Property Rights for discussion and Finally,we use the comparative analysis method to draw on the mature overseas experiences that are in line with China’s national conditions,taking into account the current situation of subjective elements in the application of punitive damages for trademark infringement in overseas countries.Based on the purpose of unifying the rules for the application of punitive damages for intellectual property rights and giving full play to the efficacy of the punitive damages system for trademark infringement in China,this paper proposes to amend the subjective element of "malice" in paragraph 1 of Article 63 of the Trademark Law to "intent",and to construct a "willful infringement + circumstances" system.This paper proposes to amend the subjective element of punitive damages in Article 63(1)of the Trademark Law from "malicious intent" to "intentional intent",and to construct a parallel application element of "intentional infringement + aggravated circumstances",and to clarify the relationship between the subjective and objective elements of "intentional infringement" and "aggravated circumstances".Finally,we analyze the criteria for determining the subjective elements in judicial practice based on the experience in China’s copyright plagiarism cases,and clarify that the key to determining "intentional infringement" is "contact",and classify and summarize the circumstances for determining the subjective elements in practice based on this key.