How to calculate compensation for trademark infringement
1. There are three ways to calculate compensation
"Trademark Law" Sixth Article 13: The amount of compensation for infringement of the exclusive right to use a trademark shall be determined based on the actual losses suffered by the right holder due to the infringement; if the actual losses are difficult to determine, they may be determined based on the benefits gained by the infringer due to the infringement; the losses of the right holder or the infringer If the benefits obtained are difficult to determine, they shall be reasonably determined with reference to the multiple of the trademark license fee. For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be not less than one time but not more than five times the amount determined according to the above method. The amount of compensation should include the reasonable expenses paid by the right owner to stop the infringement. According to this provision, we can see that there are three calculation methods for trademark infringement compensation:
1. The benefits obtained by the infringer due to the infringement;
2. The losses suffered by the infringed party due to the infringement;3. Statutory compensation.
2. The first calculation method (infringer Application of benefits obtained by infringement)
As for the benefits obtained by the infringer due to infringement, it is very complicated to calculate strictly according to the financial system. First, in In practice, it is almost impossible to obtain complete and true financial records of the infringer. Secondly, the infringer is likely to have no actual profit. For example, if the infringement is discovered at the beginning, all the goods have not been sold or the sales volume is very small. , not enough for the upfront packaging and other expenses.
This method is more applicable in practice, from the perspective of investigation and evidence collectionIt is also relatively easy, so it is the preferred method.
3. Application of the second calculation method (losses suffered by the infringed party due to infringement)
Loss suffered due to infringement can be calculated based on the reduction in sales of the goods caused by the infringement or the product of the sales volume of the infringing goods and the unit profit of the registered trademark goods.
In practice, it is rare to see compensation calculated in this way.
4. Application of the third calculation method (statutory compensation)
Personal causes of infringement If it is difficult to determine the benefits gained from the infringement or the losses suffered by the infringed party due to the infringement, the people's court may determine the amount of compensation based on the request of the party or ex officio by applying the provisions of Article 63 of the Trademark Law.
5. Regarding reasonable expenses
Carefully understand Article 63 of the Trademark Law Article 1. Reasonable expenses should only be included when calculated according to the second method. There are also different views on this issue in the theoretical circles. In practice, the judgments of various courts are also inconsistent. As a lawyer, in all trademark infringement cases, no matter which method is used to calculate infringement compensation, reasonable expenses are always included. This approach is often supported by judges.
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