The Research Of Real Damage When Calculating The Compensation In Trademark Infringement Cases

When determining the amount of compensation in trademark infringement cases,the actual loss of right holders is the first basis,which is also most consistent with the "filling principle".However,in the judicial practice of our country,it is rare to determine the amount of compensation according to the actual loss of right holders.There are two main reasons: it is difficult for right holders to provide evidence.The judicial circles in our country generally believe that the actual loss of right holders is difficult to accurately calculate,so they tend to apply the legal compensation system,resulting in the generalization of the application of legal compensation.This paper focuses on the actual loss of right holders in trademark infringement cases,analyzes situation and problems of legislation and judicature,and puts forward suggestions from the perspective of legislation and practice.The main research contents and research process of this paper include: first,it illustrates the basic theory of trademark infringement damage compensation;The second is to sort out the legislative situation at home and abroad related to the actual loss,and analyze the main problems existing in China’s legislation;The third is to analyze the main problems in the administration of justice according to the application in the judicial field of our country;Fourth,using economic analysis methods,this paper puts forward some suggestions to improve the application of actual loss in trademark infringement compensation in China.The research methods of this paper include: in chapter 3,using the economic analysis tools such as supply-demand curve,marginal income and marginal cost,this paper studies the current profit loss caused by trademark infringement,such as the decline of sales volume,price and cost;Using the game theory analysis,this paper studies the expected income loss caused by trademark infringement.In chapter 4,with statistics and cases,this paper studies the methods and basis for confirming the amount of trademark infringement compensation in China’s judicial field in recent years,and analyzes the "Haitian trademark infringement case","Baroque trademark dispute case","Xiaomi trademark infringement case","Bridgestone trademark infringement case","Yingli trademark infringement case" and other typical trademark infringement cases,extract the identification ideas and calculation methods of right holders’ actual loss in the case.In chapter 5,the calculation formula of the actual loss is deduced mainly by using the analysis methods such as economics.The research results of this paper include: the scope of actual loss in trademark infringement damages;Calculation method of current income and long-term income loss;Identification method of causal relationship between infringement and actual loss.On this basis,it puts forward opinions and suggestions on perfecting laws and regulations and improving judicial application.