Study On The Judicial Application Of Punitive Damages In Trademark Infringement

In view of the fact that the trademark right is easy to be infringed and the victim is hard to get full compensation,to punish and avoide potentially harmful behaviors to the public interests,the rule of punitive damages emerges as the times require.In 2019,the revised Trademark Law amended the punitive damages multiple from “One to three times”to “One to five times”and raised the legal compensation amount from“Three million”to“Five million”,which reflect its importance.However,from the practical point of view,it still faces many problems.The application rate of this system is far lower than that of legal compensation and is in the dilemma of marginalization.But in the judicial practice process,the trademark infringement punitive damages actually apply difficultly,which is in the dilemma of marginalization.Firstly,it is due to the strict standard of determining the base in system legislation and the difficulty of providing evidence in judicial practice,which makes it difficult to apply punitive damages and abusing the legal compensation.Secondly,the definition of subjective "malice" and objective "serious circumstances" in the constituent elements is vague.The large span of compensation multiple and the high discretion of judges lead to the difference in the amount of compensation;Thirdly,the excessive amount of compensation leads to the inequality of rights and obligations.Compared with the existing research results with similar contents,the research feature of this paper is taking the statistical analysis of judicial case data in recent years as the starting point,using data and typical cases to show the current difficulties in the judicial application of punitive damages for trademark infringement,so as to further analyze the causes and optimize the proposed scheme.Especially in the content of compensation amount and distribution,it puts forward arguments such as "possibility of condemnation","malicious classification" and "division of compensation",hoping to improve the breadth of research.This article carries on the elaboration from the following four parts,to help the judicial practice.The first part: The origin and development of punitive damages system.This part corresponds to the first chapter of this paper.Through the analysis of the historical evolution of the typical American system of the global punitive damages system,the characteristics of the punitive damages system in the field of intellectual property rights and the controversial points of punitive damages,this part scientifically discusses the necessity of the research on the punitive damages system of trademark infringement.The second part: The statistics and the analysis of our country trademark infringement punitive damages case.This part corresponds to the second chapter of this article,through the big data statistical analysis the content of the judgment,to find out the problems of the parties ’difficulty in adducing evidence,the vague definition of punitive damages,the confusion of the relationship between punitive damages and statutory damages,and so on,to provide the basis for the following solutions.The third part: The exploration of punitive damages for trademark infringement.This part corresponds to the third and forth chapter of this article,which is divided into the application of constitutive requirements and the determination of the amount of compensation.On the premise of distinguishing the subjective and objective constitutive elements,the author puts forward the special constitution of “The possibility of condemnation”,and on the premise of the application of punitive damages,to explore and put forward proposals such as “Canceling the ranking of measurement bases ”,“ Determining the compensation multiple based on the probability of condemnation”and “Implementing the malicious grading system”,the author hopes to provide a series of solutions from the application of the former system to the determination of the compensation amount of the latter.The fourth part: to explore the punitive damages for trademark infringement,hoping to guarantee the punitive damages deterrent function and solve the problem of “Unjust enrichment”hidden in the plaintiff.