Study On The Recognition Of The Recovery Of Defendant's Profit In Trademark Infringement Compensation

In the calculation of compensation for infringement in our country,there is a problem that statutory compensation occupied an unreasonable high proportion.Among the trademark Infringement cases,method of recovery of defendant's profit is used less than 1% and constitute one reason of the improper compensation of the right holder.Increase use times of other calculation methods of damage compensation can strengthen the protection of right holders.Currently,the main skepticism of judicial protection is concentrate on the protection of right holder.Specifically,the intangible of trademark result in the difficulty in calculation,the method of calculation of damage compensation is disunity and roughness and it is difficult to determine the factors of consideration in the calculation of damages.Therefore,the amount of compensation for trademark infringement damages is relatively low.Legal norm,case and comprehensive analyze are all adopted in this paper,and this paper can be divided into fourchapters.The first chapter puts forward viewpoint that the use proportion of the method of recovery of defendant's profit should be increased by analyzing the Status quo of compensation for trademark infringement cases and its reasons.This chapter also clarifies the main purpose of recovery of defendant's profit and its advantages and point out the reason of the problem is due to the absence of explicit calculation method and uniform judicial judgment standard in practice.The second chapter clearly identified the calculation basis of recovery of defendant's profit can be roughly divided into accounting books and sales orders and other relevant evidence,then indicate that the right holder should bear the burden to provide preliminary proof.Under the circumstance that the right holder applies to the court for orders to request the infringer to provide reasonable evidence and the court approve the application,the infringer should obey the order otherwise it will undertake the liability for proof of obstruction.The infringer should provide evidence on the deduction of expense and cost,otherwise,the court will not adopt it.The third chapter discusses the element of calculation of recovery of defendant's profit,such as the period,scope and profit margin and the detailed calculation process.The profit segmentation can be divided into two steps,the first step is to divide the profit from infringement and non-infringement action,the second step is to clarify the profit which is not due to the trademark in the defendant's profit.After the exercise of discretion of the judge,the final amount of defendant's profit could be confirmed.The forth chapter points out the problems existing in the recovery of defendant's profit in our country by analyzing three aspects as likelihood of confusion,subjective element and competitive relationship and brings forward that recovery of defendant's profit is not applicable to reverse confusion and give somesuggestions for its improvement.