Research On The Judicial Application Of Punitive Damages For Trademark Infringement In China

In 2013,China’s Trademark Law was revised for the third time,and Article 63 of the law officially stipulated the punitive compensation system.However,with the vigorous development of China’s intellectual property industry,the number of registered trademarks has been increasing year by year,and trademark infringement cases have been increasing year by year.The amount of infringement has also been continuously increasing,and the traditional regulations on compensation amounts and multiples are no longer sufficient to compensate for the losses of the rights holders.Therefore,in the sixth year of implementation of the system,namely the fourth revision of the Trademark Law in 2019,the original "one to three times" provision in the punitive damages system was revised to "one to five times",and in 2021,the corresponding judicial interpretation for hearing punitive damages cases of intellectual property was issued.At present,the punitive damages system is relatively complete at the legislative level,but the true essence of the law lies in practice,and there are still many problems in the judicial application of this system.Therefore,starting from the judicial application of the punitive damages system,it is an urgent issue to consider and explore corresponding improvement paths to make the punitive damages system effective in judicial practice.Empirical analysis shows that there are many applicable issues with the punitive damages system in the judicial practice of trademark infringement.Specifically,it includes: firstly,there is a serious imbalance in the application ratio of statutory compensation and punitive compensation.The former has a very high application rate,while the latter is rarely applied.The abuse of statutory compensation has seriously affected the application of punitive compensation.Secondly,in judicial practice,the application boundary between statutory compensation and punitive compensation is unclear,and punitive compensation is implemented in the name of statutory compensation.Thirdly,the difficulty in determining the base hinders the application of the punitive damages system in judicial practice.Analyzing the reasons for the non application of the system,over half of the court cases directly refuse to apply punitive damages on the grounds that the base is difficult to determine.In some cases,it is even easy to find that "difficult to determine" leads to different judgments in the same case.The main reason for the difficulty in determining the base is the difficulty in providing evidence,which plays a decisive role in determining the final amount of damage awarded.It is precisely this difficulty in providing evidence that leads to insufficient evidence to determine the base,and punitive damages are also difficult to obtain court support.Fourthly,there is a lack of unified application standards for the multiples of punitive damages,and the standards for determining multiples in different cases are not uniform,resulting in different multiples being determined.Therefore,through case search and statistical analysis conducted by Peking University’s magic weapon,the reasons for the low application rate of punitive damages were identified.At the same time,an extraterritorial comparison was conducted on the judicial application of the punitive damages system,drawing on relevant experience of extraterritorial application.Finally,the following improvement suggestions were put forward for the judicial application of the system:first,to standardize the application of statutory compensation,including guiding parties to actively provide evidence and reasonably limit the application of statutory compensation;Secondly,it is necessary to clarify the relationship between punitive compensation and statutory compensation,and avoid using the name of statutory compensation to conduct punitive compensation;Once again,it is important to improve the method of determining the base number.It is not necessary to strive for precision in determining the base number,but to improve the evidence rules for determining the base number.At the same time,statutory compensation can be used as a punitive compensation base;Finally,refine the criteria for determining multiples and standardize the determination of multiples using the "factor accumulation method".