Judicial Determination Of The Amount Of Punitive Damages In Trademark Infringement Cases

The problem of calculating the amount has always restricted the application of the punitive damages system.The judicial interpretation issued by the Supreme People’s Court in March 2021 and typical cases only explained the applicable conditions,but did not put forward a practical method for calculating the amount.In order to exert the function of the system effectively,it is of great significance to study a set of effective calculation methods.By searching the effective judgments of the court and selecting the conditions of "judgment date of January 1,2020 and later","trademark infringement disputes" and "punitive damages",1,572 judgments were screened one by one and a total of 36 cases were obtained.Selecting typical cases from the research samples to determine the base and multiple of the analysis,summed up the current trademark infringement cases in the amount of punitive damages calculation of the problem: First,whether the legal compensation can be used as the base of punitive damages calculation of the judicial application is inconsistent;Second,it is difficult to determine the calculation base of the amount of punitive damages.According to the current judicial interpretation,the calculation formula of actual loss and infringement profit is the same,and the boundary between the two is fuzzy.Third,when determining the multiple of punitive damages,the court lacks concrete basis and insufficient reasoning.There is no obvious correlation between the specific circumstances of the case and the multiple of punishment,and the scope of discretion is too large and lacks persuasion.Fourth,the amount of punitive damages is calculated as "base * multiple",or "base +base * multiple" in practice there are major differences,different courts used between the amount of calculation method is not unified.In the analysis of the judges thinking,and combined with the basic theory of punitive compensation system,on this basis,in view of the above problems put forward the corresponding suggestions for improvement.First of all,legal compensation is only a supplementary means when the compensation base can not be accurately calculated.In essence,it is no different from the other three bases,so it can be used as the base of punitive damages.When determining the amount,only compensatory nature should be considered,not punitive nature.Secondly,trademark infringement punitive damages cases should follow the parties’ request,preponderant evidence,compensation and punishment dichotomy three principles,these three principles throughout the determination of the amount of the case,especially in the actual loss and infringement profit calculation formula is the same,the compensation and punishment dichotomy is particularly important.Thirdly,according to the latest judicial interpretation and a large number of related cases,a "punitive damages multiple factor resolution table" is constructed to specify and quantify the punitive damages multiple of five times,which can not only solve the problem that the judge has too much discretion in determining the multiple,but also solve the problem that the multiple is always an integer multiple.Finally,the author puts forward a new point of view on the new problem of the calculation of punitive damages.Starting from the principle of dichotomy of compensation and punishment,the author thinks that the method of "base number + base number * multiple" should be adopted to calculate the amount of damages.