The Calculation Methods Of American Trademark Infringement Damages And The Inspiration To Chinese Trademark Law

In 2013, Chinese trademark law has been amended for the third time. This amendent clears the application of trademark infringement monetary relief,reflects the complete compensation principle in trademark law.The infringer is required to restore the damages caused by the infringement to the state of the infringement never happened.However,this amendent fails to solving the existing problems.This paper, starting from the analysis of the problems existing in Chinese trademark infringement, then introduces some relevant rules and regulations in United States trademark infringement.The structure of this paper is divided into five parts.The first part puts forward the problems in damages of trademark infringement cases in our country. Three main problems have been found:(1) the scope of the damages compensation is not reasonable;(2) the method of causality identification is sole;(3) the calculation method of damages in trademark infringement is not accurate.The second part introduces the scope of damages compensation in American trademark infringement cases.Including damages of sales damages, damages of price erosion, damages of licensing fees, damages of goodwill, and advertising costs. The author introduces the meaning of each damage, identification methods and citing some typical cases.The third part introduces the theory and rules of the causality in American trademark infringement cases. This paper introduces the Panduit rules, market share rules and the premise of the Panduit rules, which are commonly used in the determination of factual causality.The author then introduces the Rite-Hite case and King case,explaining the rules of legal causality.The fourth part analyzes the common calculation method of damages in the trademark infringement cases in the United States. Including comparative analysis method, reference method, regression analysis method. The author introduces the application of each method in detail.The fifth part summarizes the American trademark infringement damages compensation theory, coming up with the inspiraton of American’s rules and calculation method in trademark damages compensation.Then puts forward some suggestions to perfect the damages compensation in Chinese trademark law.