Analysis On The Problems Of Punitive Damages In Trademark Infringement

With the rapid development of market economy in China, the value of trademark is becoming increasingly remarkable, followed by increasing trademark infringements. For reasons that it’s easy to infringe trademark rights but hard to get relief, and cost of infringement is relatively low comparing to high profits, willful and repeated infringements become serious problems. Compensation damages is the common principle in our trademark legislation, which seems to be inadequate to solve the problem.On March 3, 2015, “Several Opinions of CPC Committee and the State Council on deepening the reform of institutional mechanisms to accelerate the implementation of driven development strategy” was published. It pointed out that China should establish strict ways to protect intellectual property, improve relevant laws, study how to lower the threshold of being criminally liable for infringements, adjust damages standard, and explore implementing punitive damages. This official document came up with a definite goal to improve the protection of intellectual property. China enacted its first Trademark Law on 1982, and twice revised the law on 1993 and 2001 based on the background of establishing market economy system and accession to WTO. On August 30, 2013, NPCSC amended the Trademark law and introduced punitive damages to the method of damages, which was really a bold attempt in the field of intellectual property. However, up to now, no judges use this method mainly because the key components of punitive damages are not clear. This paper aims to make a systematic study on punitive damages and try to give some suggestions on how to apply this method to trademark infringement on the basis of experiences from other countries and with the help of comparative study and empirical analysis.Through the collection and analysis of relative cases in China, some problems can be found in damages of trademark infringements. First, the infringed often can’t get adequate compensation. Second, statutory damages are overused in practice. Third, though punitive damages clause is now as a part of Trademark Law to confront some willful or malicious infringements, the clause has never been used since the standard of its components is not clear. The legislators hope this clause would bring some positive results regarding to serious infringements and infringers’ subjective malice. Thus, it is necessary to make a study on punitive damages in trademark infringement so that we can have a better understanding of this clause and use it properly.In fact, compensatory damages is still the main principle in trademark infringement, but applying punitive damages can compensate the infringed and restrain infringers, which is a development trend in trademark infringement system. Now many common law countries have adopted punitive damages in practice, and some civil law countries which reject this damage for a long time gradually accept punitive damages along with the integration of the two legal systems. China has established the position of punitive damages though the application seems to be a bit difficult. So we should combine the development of social practices and the experiments from other countries to figure out the condition to apply this clause.From the comparison and historic perspective, we can see England has used punitive damages as a dependent remedy since 18 Century, but it restrict this remedy in three kind of cases. Unlike England, plaintiffs in Australia can claim for punitive damages in almost all tort cases. And when this remedy was introduced to America, it has been fully developed and used in many fields like trademark infringement. But in order to prevent abuse of this remedy, America made several measures to restrict the use of it. Taiwan has a traditional civil law system and it drew on the experience of America and introduced punitive damages to its civil law. The practice in Taiwan has a direct effect to us and thus we know that compensation damages and punitive damages actually don’t have fundamental conflict. There is always room for punitive damages in civil law and intellectual property as well.With regard to improving the punitive damages in trademark infringement, the writer think we should make sure the elements of this clause like subjective malice of the infringer, the judgment of serious circumstances and the actual injury of the infringed. In addition, it is useful to apply expert assistant and obstruction of evidence to help determine the amount of punitive damages. More publicity of this clause, adjusting the judges’ thought appropriately and appearance of relevant judicial interpretation are also important methods to improve punitive damages system in China.