1. Compensation standards for trademark infringement
1. Criteria for determining the amount of compensation(1) The amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the rights holder’s The actual loss suffered due to the infringement is determined;
(2) If the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement;
p>(3) If the loss of the right holder or the benefit obtained by the infringer is difficult to determine, it shall be reasonably determined by reference to the multiple of the trademark license fee;
(4) For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be between one time and three times the amount determined according to the above method.
The amount of compensation should include the reasonable expenses paid by the right holder to stop the infringement.
2. The right holder suffered as a result of the infringement If it is difficult to determine the actual losses caused by the infringer, the benefits gained by the infringer due to the infringement, or the registered trademark license fee, the people's court shall award a compensation of not more than five million yuan based on the circumstances of the infringement.
2. Calculation of Profits from infringement
1. Regarding the calculation of the benefits obtained by the infringer due to infringement, the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases" ( (hereinafter referred to as the "Interpretation") Article 14 stipulates: "TrademarkThe benefits obtained from infringement as stipulated in Paragraph 1 of Article 56 of the Law can be calculated based on the sales volume of the infringing product and the unit profit of the product; if the unit profit of the product cannot be ascertained, it shall be calculated based on the unit profit of the registered trademark product. "The State Administration for Industry and Commerce also stipulated in the "Opinions on Several Issues in the Administrative Enforcement of Trademarks" on December 29, 1999: "The profits gained by the infringer due to infringement during the infringement period generally refer to sales revenue minus costs and Taxes payable. The calculation of sales income only involves the actual income of the infringer, that is, the income from the goods sold does not include the goods in stock. ”
2. Although the above two calculation methods are different, their basis is the profit obtained from infringement. However, in commercial operations, the profits obtained by the enterprise can be divided into There are three types of main business profit, total profit and net profit. Main business profit refers to all income obtained from sales, after deducting costs; total profit refers to pre-tax income, and income tax should be returned to the treasury as part of the sales compensation amount. Others Expenditures should be deducted, but product sales tax is not refundable; net profit refers to profits that should be deducted not only from costs, but also from other expenses, and the net profit obtained by the infringer during the infringement period shall be used as the amount of compensation. On the issue of compensation for profits obtained from infringement, It is more reasonable to choose main business profits as the amount of infringement compensation. It does not need to pay income tax not generated by one's own business to protect the interests of the infringed party, and it is also helpful to deter infringement.
3. However, in cases where the trademark infringement targets only one or several products of the trademark owner's products, rather than all products, different calculation methods should be adopted. In practice, a more practical calculation formula is: profit from infringement = total sales during the infringement period × infringing product distribution ratio For the discussion of profits obtained from infringement, the product of the total sales during the infringement period and the ratio of the infringing goods is the main operating profit mentioned above.
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