Analysis Of Punitive Damages On Trademark Infringement

With the development of knowledge economy, China’s protection in the intellectual property is more and more intense, Obliges’ consciousness are more and more strong, and the problem of compensation for intellectual property infringement damages are getting more and more attention. In recent years, in the economic society, the value a trademark carrying to which indicating the source of goods or service is increasing,the trademark owner and therefore get more benefits. In this circumstance, trademark infringement cases are more than ever and the infringement means are more and more complex. The amount of trademark infringement damage compensation is low, the statutory compensation rate are higher. China’s current valid law of trademark is carrying out on May 1, 2014, which add the malicious infringement of trademark for the first time(in theory it called punitive damages), and the statutory compensation limit increased to three million, aiming to fill the deficiency of compensatory damages, to improve the enthusiasm of the obliges defending themselves, and to hit malicious trademark infringement behavior. The main functions of punitive damages is to punish the infringer, to stop them acting the same infringement behavior again, and to prevent the potential infringers to implement similar violations, giving trademark owners more powerful protection.This article takes the perspective of empirical analysis, and through the analysis of the cases related to trademark infringement damages, we can see that first, before and after the implementation of the current trademark law, although the court considered the infringer’s subjective attitude, the character of tort, the details of tort and soon in determining the amount of damages, but they did not distinguish whether the infringement is a malicious tort. In most of the cases, regardless of whether the plaintiff presented on proof of actual loss, the amount of compensation for the judgment of the court were low, and they used a very high proportion for statutory damages clause. This of course relates to the intangible of trademark, the immeasurable of losses, and also have something to do with the high amount of compensation the plaintiffs request, their claim have no or insufficient evidence to support, but the more important reason is that the before the amendment of the trademark law, it only has the compensatory damages, when the losses of the obliges cannot be calculated accurately, the courts are likely to determine a low compensation using statutory compensation clause with the cautious attitude and to improve the efficiency of lawsuit. So in the judicial practice, trademark owners’ actual losses cannot be fully compensate, therefore it is nece ssary to introduce the punitive damages system. Second, although the existing trademark law already has the regulation of punitive damages, through the cases applied the current trademark law, we can see that even the court knew the infringement is a malicious tort; it did not apply the punitive damages to those situation, and the final compensation of these cases were low as before. Such phenomenon is not because the punitive damages regulation has no practical significance, but because of the regulate of the current trademark law about punitive damages is vague, it only has two elements, and it does not explain what the punitive damages apply when determine a case, so the real implementation of the punitive damage system rely on a series of relevant laws and regulations to be launched, in order to guide the court trial, improve the trial level, and make the punitive damages has real meanings.