Research On The Punitive Compensation System For Trademark Infringement In China

In 2013,China established a system of punitive damages for trademark infringement in the trademark law in order to curb the continuous infringement,maintain a fair market trading mechanism and promote the construction of an innovative country.However,from the perspective of implementation,the advantages of the system are not fully revealed.The problems of "difficult proof,long cycle,high cost and low compensation" have not been fundamentally improved,which are closely related to the unclear application conditions of punitive compensation system and the lack of rationality of fine calculation.In 2019,the civil code(Draft)was officially published and the punitive compensation system of intellectual property rights has been confirmed by the basic civil law.The importance of the system is selfevident.In order to prevent the system from being “shelved”,it is imperative to improve its application rate.In response to the above problems,it is necessary to perfect the punitive compensation system of trademark infringement to some extent.First,clarify the applicable conditions of punitive liability,and clarify the meaning and relationship between "intentional" and "serious circumstances".As for the "intentional",a combination of trademark recognition and similarity of infringing trademarks can be adopted.Multiple infringements can be directly identified as "intentional".As for the "Serious plot",it must comprehensively consider the content of the loss of the right holder and the severity of the infringement.For torts that seriously infringe on the public interest,it is not necessary to consider the above factors,and it can be directly characterized by "serious plot".Secondly,adopt the superior evidence standard to determine the amount of compensation,improve the compulsory effectiveness of the rules of evidence disclosure,and combine the system of proof obstruction to improve the proof rate of damages.Thirdly,under the premise of combining with the rules of evidence,create a scope of compensation for actual losses,and include price erosion losses,goodwill losses,etc.into the scope of actual losses;Broaden the channels of evidence identification of infringement profit.Information such as webpages,microblogs,and other online platform information,mobile application messages,and other web application service communication information,as well as product sales content and infringing product "seizures",can be treated as sold products under certain circumstances.Enrich the calculation method of reasonable license fee.The reasonable license fee can be calculated by the combination of virtual transaction price and real transaction price.In addition,it is necessary to rationalize the relationship between the calculation methods and the application order on the basis of improving the damage compensation method,so as to advance the standardization process of the damage compensation calculation method and ensure its operability.Finally,punitive damages should not be based on statutory damages.In order to avoid the lack of an evaluation mechanism for serious torts without valid evidence,legal compensation should have both the characteristics of compensation and punishment.