Research On The Application Of Punitive Damages For Trademark Infringement

Our country’s trademark tort punitive compensation system has been legislated for many years,but because the calculation method of punitive compensation is not clear,its application is restricted in our judicial practice.To capitalize on the effects initially assumed when the punitive compensation system was set out,it is essential to thoroughly examine the various issues in the calculation process of punitive compensation and to resolve them.This paper endeavors to retrieve cases of punitive damages based on trial practice by examining the legal,judicial interpretation,and research of relevant experts on the magnitude of punitive damages for trademark infringement.In recent years,people’s courts have implemented new trademark infringement disputes,which has led to a number of issues with the calculation of punitive damages in these cases: Firstly,the process for determining punitive damages is not well understood;Secondly,it is difficult to identify the source of punitive damages,such as the difficulty of finding evidence and a single calculation method.The judge’s discretionary range being too large,the reason for determining the multiple of punitive damages is insufficient,and the principle of doing so is unclear;thus,no clear basis is present.This article begins by examining the current trademark law and its judicial interpretation,thereby elucidating the liability of punitive damages and the foundation of compensation.Subsequently,the criteria for determining compensation should be taken into account in relation to the application of punitive damages systems in foreign countries,due to the difficulties in calculating punitive damages.Analyzing the judge’s judgment thinking,from the actual problems,targeted suggestions and opinions are proposed based on a multitude of related cases.Primarily,the concept of subjective and objective conditions in punitive damages is clarified and the distinction between "malicious" and "intentional" is made unmistakable.The degree of subjective malignancy of "malicious" is higher than that of "intentional",which should be judged according to the facts and the seriousness of the circumstances of specific cases,so as to infer the subjective "malicious" of the infringer.When judging the seriousness of the case,the nature,scope,time,space and frequency of infringement should be taken into account.Secondly,the source of determining the compensation amount base should be relaxed to include the loss of goodwill into the base range.The base of punitive damages can be reasonably determined by drawing lessons from the overseas practice of introducing assets appraisal technology into the calculation of intellectual property damages.In order to balance the distribution of burden of proof,the constructive method in the inversion of burden of proof and the strict implementation of the rules of nuisance of proof are adopted.Finally,the principle of multiple of punitive damages should be clarified,and a specific table on multiple of punitive damages should be drawn up by referring to the guidance of the Supreme People’s Court and the Supreme Inspection Commission to refine the quantitative standard.