On the basis of determining compensation in trademark infringement cases. Article 56 of the Trademark Law stipulates that the amount of compensation for infringement of the exclusive right to use a trademark shall be the benefits gained by the infringer during the period of infringement, or the losses suffered by the infringer during the period of infringement, including the reasonable expenses paid by the infringer to stop the infringement. Thus, in trademark infringement cases, when establishing compensation, the plaintiff must provide evidence to prove the benefits that the infringer gained during the infringement period, or the plaintiff must provide evidence to prove the losses that the infringed suffered during the infringement period. There are several issues to be clarified here:
First, how to determine the period of infringement.
article 18 of the Supreme People's Court's interpretation on several issues concerning the application of law in the trial of trademark civil disputes states that the limitation of action for infringement of the exclusive right to use a registered trademark is two years, counting from the date when the trademark registrant or interested party knows or should know about the infringement. If the trademark registrant or interested party files a lawsuit for more than two years, if the infringement continues at the time of filing the lawsuit, the people's court shall order the defendant to stop the infringement within the validity period of the exclusive right to use the registered trademark, and the amount of compensation for infringement damages shall be calculated forward for two years from the date when the obligee files a lawsuit with the people's court. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Disputes, the period of infringement is generally two years, and the starting date of the above two years is the date when the plaintiff brings a civil lawsuit to the people's court with jurisdiction.
second, the determination of the interests gained by the infringer during the infringement period.
Article 14 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulates that the benefits obtained from infringement as stipulated in the first paragraph of Article 56 of the Trademark Law can be calculated according to the product of the sales volume of infringing goods and the unit profit of the goods; If the unit profit of the commodity cannot be ascertained, it shall be calculated according to the unit profit of the registered trademark commodity. The above judicial interpretation provides two ways to calculate the benefits obtained from infringement. One is the product of the sales volume of infringing goods and the unit profit of the goods, that is, the amount obtained by multiplying the sales volume of infringing goods by the unit profit of infringing goods. The second is the product of the sales volume of infringing goods and the unit profit of registered goods, that is, the amount obtained by multiplying the sales volume of infringing goods by the unit profit of plaintiff's registered trademark goods. Of course, the premise of using the second method is that the unit profit of infringing goods cannot be ascertained. In addition, there is an unsolved problem, that is, whether it is the unit profit of infringing goods or the "profit" of registered trademark goods, there are sales profits, operating profits and net profits. Obviously, the above profits are decreasing step by step. So which profit should be used as the calculation basis?
on April 25, 27, in the final civil judgment of yamaha Engine Co., Ltd. v. Zhejiang Huatian Industry Co., Ltd., Nanjing Lianrun Automobile and Motorcycle Sales Co., Ltd., Taizhou Huatian Motorcycle Sales Co., Ltd. and Taizhou Cargill Motorcycle Sales Co., Ltd., It is believed that the third paragraph of Article 2 of the Supreme People's Court's Provisions on the Application of Laws in the Trial of Patent Dispute Cases stipulates that the benefits obtained by the infringer due to infringement are generally calculated according to the infringer's business profit, and for the infringer who is completely engaged in infringement, it can be calculated according to the sales profit. This provision can be used as a reference when calculating related problems. In this case, Yamaha Engine Co., Ltd. claims to determine the amount of compensation by infringement profit, and the calculation is operating profit, not sales profit and net profit. The relevant product sales tax and surcharges, sales expenses, management expenses and financial expenses have been deducted, and there is no need to deduct enterprise income tax. Because Taizhou Huatian Motorcycle Sales Co., Ltd. and Taizhou Cargill Motorcycle Sales Co., Ltd. refused to submit relevant evidence of operating profit and cost to the court of first instance, and did not appeal to our court, our court did not support Zhejiang Huatian Industry Co., Ltd.' s appeal that the calculation method advocated by Yamaha Engine Co., Ltd. did not deduct operating costs, income tax and other expenses. "
according to the above-mentioned civil judgment in the Supreme People's Court, it can be known that the profits in tort damages are generally business profits, while those who take tort as their business shall be subject to sales profits. Obviously, this calculation shows the tendency of punishment for intentional trademark infringement.
third, the losses suffered by the infringed party due to infringement during the infringement period.
Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulates that the losses suffered by infringement as stipulated in the first paragraph of Article 56 of the Trademark Law can be calculated according to the product of the sales reduction of goods caused by infringement or the sales volume of infringing goods and the unit profit of the registered trademark goods. It can be seen that the above judicial interpretation also provides two ways to calculate the losses suffered by the infringed. One of them is the product obtained by multiplying the sales reduction of goods caused by infringement by the unit profit of goods with registered trademarks of the infringer; The second one is the product obtained by multiplying the sales volume of the infringing goods by the unit profit of the goods with the registered trademark of the infringed person.
It can be seen from the comparison between the second calculation method and the third calculation method that different calculation methods will lead to different compensation amounts for the same case. For example, in an infringement case, the defendant produced 5 pieces of infringing goods, the unit profit of infringing goods was 1 yuan, and the unit profit of registered trademark goods was 12 yuan. The plaintiff reduced the sales by 1 pieces because of the defendant's infringement. In the above examples, different selection criteria will lead to different compensation results. The following calculations are made one by one. First, based on the principle of calculation, there are two calculation methods. The first is the amount obtained by multiplying the sales volume of infringing goods by the unit profit of infringing goods, that is, 5×1=5; Second, if the unit profit of the infringing goods cannot be calculated, the amount obtained by multiplying the sales volume of the infringing goods by the unit profit of the plaintiff's registered trademark goods is 5×12=6 yuan. Secondly, based on the principle of calculation, there are two calculation methods. The first one is the product of the product of the sales reduction of goods caused by the infringement by the infringer multiplied by the unit profit of the goods with the registered trademark of the infringer, that is, 1×12=12. The second one is the product of the sales volume of the infringing goods multiplied by the unit profit of the goods with the registered trademark of the infringer, that is, 5×12=6 yuan.
obviously, in the above calculation method, the product obtained by multiplying the sales volume of the infringing goods by the unit profit of the goods with the registered trademark of the infringed person is the highest. The provisions of Article 56 of the Trademark Law on the benefits obtained by the infringed and the losses suffered by the infringer are optional, that is, the plaintiff can choose to use the benefits obtained as the calculation standard or the losses suffered as the calculation standard. In the above examples, the plaintiff can get 5, yuan or 6, yuan compensation based on the benefits obtained, but the premise of the plaintiff's 6, yuan compensation is that the unit profit of the defendant's infringing goods cannot be accounted for; In the above examples, the plaintiff can get compensation of 1,2 yuan or 6, yuan based on the loss suffered, but the calculation of the above compensation depends on the plaintiff's choice. Therefore, the above examples show that different calculation methods will lead to very different compensation results, so this is why Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulates that "when determining the infringer's liability for compensation according to the provisions of the first paragraph of Article 56 of the Trademark Law, the amount of compensation can be calculated according to the calculation method selected by the obligee". That is, in trademark infringement cases, in order to obtain a larger amount of compensation, the plaintiff can choose the losses suffered by the infringed during the infringement period, and adopt the calculation method of multiplying the quantity of infringing goods by the unit profit of registered trademark goods.
fourth, the determination of legal compensation.
the second paragraph of article 56 of the trademark law stipulates that if the infringer's interests due to infringement mentioned in the preceding paragraph or the infringed's losses due to infringement are difficult to determine, the people's court shall award compensation of less than 5, yuan according to the circumstances of the infringement. How to determine the above-mentioned compensation of 5, yuan? Paragraph 2 of Article 16 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes stipulates that when determining the amount of compensation, the people's court should consider the nature, period and consequences of the infringement, the reputation of the trademark, the amount of trademark license fee, the type, time and scope of trademark license and the reasonable expenses for stopping the infringement.
In February p>27, the Supreme People's Court held the 26 National Intellectual Property Trial Work Conference in Wuxi, and proposed that "if it is difficult to prove the specific amount of infringement damage or infringement profit, but there is evidence to prove that the aforementioned amount obviously exceeds the statutory maximum compensation, the calculation method of statutory compensation is not applicable, and the compensation amount should be reasonably determined at more than 5, yuan based on the evidence of the whole case. When determining the liability for compensation according to the statutory compensation method or determining the liability for compensation according to other methods, you can consider the subjective fault of the parties to determine the corresponding liability for compensation. " It can be seen that the attitude of the judiciary is to respect both the law and the objective facts for the statutory compensation determined in Article 56 of the Trademark Law. This is why in some cases of intellectual property infringement, the plaintiff clearly applies the principle of statutory compensation, and finally the actual amount of compensation exceeds 5 thousand.
Fifthly, for intentional infringement in trademark infringement, not only the principle of "comprehensive compensation" should be applied, but also certain civil sanctions should be given to the infringer.
on April 25th, 27, in the second-instance civil judgment of yamaha Engine Co., Ltd. v. Zhejiang Huatian Industrial Co., Ltd., Nanjing Lianrun Automobile and Motorcycle Sales Co., Ltd., Taizhou Huatian Motorcycle Sales Co., Ltd. and Taizhou Cargill Motorcycle Sales Co., Ltd., the Supreme People's Court held that "in view of the obvious infringement intention of Zhejiang Huatian Industrial Co., Ltd., and during the trial of the court of first instance and our court, no complete financial information was provided. Because the unit profit of the infringing products in this case and the interests gained from infringement can be ascertained, Zhejiang Huatian Industry Co., Ltd.' s appeal for the application of the calculation method of the number of infringing products multiplied by the profit of registered trademark products or the application of compensation of less than 5, yuan in this case has no factual and legal basis, and our hospital will not support it. " According to the above-mentioned civil judgment of the Supreme People's Court, for those who intentionally commit trademark infringement, the judicial organ may transfer the burden of proof on the quantity of infringing goods sold and the profit of infringing goods unit to the defendant according to the circumstances of the case. On the premise that the defendant refuses to give evidence, the defendant shall bear the adverse consequences of failing to give evidence.