Research On Judicial Application Of Punitive Compensation For Trademark Infringement In China

The trademark punitive damages system is an aggravated compensation system rooted in the common law system.The trademark punitive damages system was introduced into my country in 2013,and the relevant system of this article was improved in the fourth revision,which shows that my country attaches great importance to combating trademark infringement.However,in its judicial application,the system has not fully played its role.Due to the inconsistent understanding of the subjective and objective application elements and the difficulty in calculating the amount of compensation,the courts are more inclined to apply statutory compensation.Therefore,in practice,the utilization rate of punitive damages for trademark infringement is extremely low.This article is divided into four chapters.The first chapter mainly expounds the actual situation of my country’s trademark infringement punitive compensation system and the main problems it is currently facing.Through the defects of the punitive damages system itself,it reveals the problems existing in the system in theory.These include disputes over the connotation of subjective and objective elements;as well as the calculation of the base multiple of the amount of punitive damages for trademark infringement and the coordination between punitive damages and statutory damages.The second chapter is an analysis of the reasons for the dilemma of judicial application of my country’s trademark infringement punitive damages system.From the perspective of historical reasons and empirical analysis.From the perspective of historical reasons,there are differences in the understanding of the nature of the system and the original intention of legislation between Chinese legislators and common law countries when the law is transplanted.Conservative and cause application dilemma.Secondly,based on the retrieval and sorting of cases,it can be seen that the claims of punitive damages by the right holders have shown an increasing trend since2013,but the proportion of cases adopted by the courts is very small.Therefore,through the method of empirical analysis,it further demonstrates the predicament in judicial application caused by the problems of the system itself.There are two reasons:the first is that due to the uncertainty of the connotation of the subjective conditions of application,it is difficult to identify and prove "bad faith" and "serious circumstances";the second is the problem of calculating the amount of punitive damages for trademark infringement.The analysis of the retrieved cases shows that the reason why punitive damages are not adopted in most cases is that the consideration of the base and multiple is difficult to determine.First,in terms of the calculation base,there are problems that the actual loss is difficult to identify,the profit from infringement is difficult to determine,and the use multiple of the license fee is difficult to apply;Compensation has a tendency to replace punitive damages;the third involves the determination of calculation multiples.The problem of calculation multiples is that the factors to be considered for multiples are not clear.The court usually only considers subjective or objective factors to determine multiples,but only determines subjective factors and ignores objective factors.The seriousness of the infringement will make the calculation of multiples unfair,and vice versa;the calculation defects of multiples are also reflected in the unclear calculation rules,and the misunderstanding of "double",such as the calculation of the amount of punitive damages for trademarks is not clear Rules,it will lead to the final judgment of the compensation is too high or not enough to cover the actual loss of the right holder.The third chapter discusses the calculation of the amount of punitive damages for trademark infringement and the understanding of the subjective and objective connotations by introducing the principle of proportionality into the judicial application of punitive damages.In this chapter,we first discuss the necessity of introducing the proportionality principle into the punitive damages system.The two seem to be contradictory in concept,but they are not.Since the actual losses of the obligee include many "hidden losses",the application of punitive damages is conducive to filling the compensation of the obligee.Second,it discusses the application of proportionality principle in punitive damages for trademark infringement,mainly in the identification of applicable requirements and the calculation of damages.Through the analysis of the three sub-principles of the principle of proportionality,it is first concluded that the connotation of "malicious" should be higher than that of "intentional".However,the connotation of maliciousness should be strictly limited to direct intention;in order to comply with the principle of proportionality,"serious circumstances" should belong to the serious circumstances of objective behavior rather than "serious circumstances of maliciousness",and it would be unfair to interpret it as a subjective element.The judgment based on "subjectiveism" is unreasonable,and the criminal law can be referred to for the determination of "serious circumstances".Secondly,in the calculation of the amount of compensation,the base number of punitive damages should be precise,so as to distinguish it from statutory damages.From the perspective of the principle of suitability,it should be concluded that the nature of statutory damages should not be punitive,otherwise there will be repeated evaluations.From the perspective of necessity,the multiple of punitive damages should not be unreasonable.For the doubts raised in Chapter 2,subjective and objective factors should be comprehensively considered in the multiple consideration factors.It is most appropriate to calculate the multiple by quantifying the multiple.The flaws of the rules can be removed by modifying the expression of the legal language to remove the expression of "double".Finally,from the perspective of the principle of balance,it is discussed that the economic situation of the infringer should be considered when applying the punitive damages system.The fourth chapter is a summary of the whole thesis,mainly for the improvement of judicial application of my country’s trademark punitive damages system.Combined with the problems and solutions mentioned above,the point of view of the problem in this article is condensed and presented in this chapter.It is hoped that this article can improve the defects of the trademark punitive damages rules,so as to better apply the system.