How to calculate compensation for trademark infringement
The law stipulates three compensation calculation methods. How to apply them in practice? ?Article 13 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Disputes" (hereinafter referred to as the Interpretation) stipulates: "The People's Court determines the compensation of the infringer in accordance with the provisions of Article 56, Paragraph 1, of the Trademark Law When liable, the amount of compensation can be calculated according to the calculation method chosen by the right holder." This means that the infringed party can choose whether to apply the first calculation method or the second calculation method. If neither of these two methods can be calculated, then the amount of compensation can be calculated by The court directly applied the third method.
1. Application of the first calculation method (the benefits obtained by the infringer due to 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 practice, it is almost impossible to obtain the benefits of the infringer. Complete and true financial records;
Secondly, the infringer may not have actual profits. For example, the infringement is discovered at the beginning and all the goods have not been sold. Out or the sales volume is very small, it is not enough to cover the initial packaging and other expenses. The High Court's explanation further simplifies this issue.
Explanation of Article 14: “The benefits obtained from infringement as stipulated in Article 56, Paragraph 1 of the Trademark Law, may be based on the sales volume of the infringing product and the amount of the product. The unit profit product is calculated; if the unit profit of the product cannot be ascertained, the unit profit of the registered trademark product shall be calculated."
This method is more applicable in practice. After filing a lawsuit in court, the trademark owner can apply to the court for evidence preservation of the infringer's financial accounts. Once the court preservation is successful, the trademark owner can calculate the infringer's profits based on the sales volume recorded in the infringer's financial records.
2. Application of the second calculation method (losses suffered by the infringed party due to infringement)
Explanation of Article 15: “The losses suffered due to infringement as stipulated in Article 56, Paragraph 1 of the Trademark Law, may be based on the reduction in sales of goods caused by the infringement by the right holder. Or it can be calculated by multiplying the sales volume of the infringing goods and the unit profit of the registered trademark goods."
This method is actually difficult to apply in practice. Because there are countless reasons for product sales to decline. Each product has its life cycle, and it will inevitably decline at the end of the product's life. It is also difficult for trademark owners to prove that the decline in sales is due to infringement by others.
In practice, it is rare to see compensation calculated in this way.
3. Application of the third calculation method (statutory compensation)
Explanation of Article 16 : “If it is difficult to determine the benefits gained by the infringer due to the infringement or the losses suffered by the infringed party due to the infringement, the People’s Court may determine it based on the request of the party or ex officio by applying the provisions of Article 56, Paragraph 2 of the Trademark Law. The amount of compensation."
Statutory compensation has preconditions and is applicable only when neither of the first two methods can be calculated. The maximum amount of compensation is 500,000 yuan.
Explanation of Paragraph 2 of Article 16: "When determining the amount of compensation, the People's Court shall consider the nature, duration, and consequences of the infringement, the reputation of the trademark, the The amount of the license fee, the type, time and scope of the trademark license and the reasonable expenses to stop the infringement are comprehensively determined." The judge will comprehensively consider the various factors specified.
Article 63 of the "Trademark Law" stipulates that "the amount of compensation for infringement of the exclusive right to use a trademark shall be the benefits obtained by the infringer due to the infringement during the infringement period, or the The losses suffered by the infringer due to the infringement during the period of infringement include the reasonable expenses paid by the infringer to stop the infringement. It is difficult to determine the benefits gained by the infringer due to the infringement or the losses suffered by the infringed party due to the infringement mentioned in the preceding paragraph. According to this provision, we can see that compensation for trademark infringement shall be awarded by the people's court based on the circumstances of the infringement."
According to this provision, we can see that compensation for trademark infringement There are three calculation methods:
①The benefits obtained by the infringer due to the infringement;
②The infringed party Losses suffered due to infringement;
③Statutory compensation.
The above is the content compiled by the editor of Legal Savior Network for you. When calculating the amount of compensation for trademark infringement, we need to follow some compensation principles stipulated by the law. Carry out so that the calculated compensation amount will not differ too much. If your situation is more complicated, the Legal Savior Network also provides online lawyer consultation services. You are welcome to seek legal consultation.