The following is an analysis on how to determine the amount of compensation in trademark infringement cases in accordance with the "Trademark Law", as well as relevant laws, regulations, and judicial interpretations, combined with the "principle of comprehensive compensation".

About the basis for 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 due to the infringement during the infringement period, or the losses suffered by the infringed party due to the infringement during the infringement period, including the Reasonable expenses paid by the infringer to stop the infringement. It can be seen that in trademark infringement cases, when establishing compensation, the plaintiff needs to provide evidence to prove the benefits obtained by the infringer due to the infringement during the infringement period, or the plaintiff needs to provide evidence to prove the losses suffered by the infringed party due to the infringement during the infringement period. Here are a few issues that need clarification:

First, how to determine the period of infringement.

Article 18 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" stipulates that the statute of limitations for infringement of the exclusive right to use a registered trademark is two years. The infringement shall be calculated from the date when the infringement was known. If the trademark registrant or interested party files a lawsuit more than two years ago, if the infringement is still continuing at the time of the lawsuit, within the validity period of the exclusive right to use the registered trademark, the people's court shall order the defendant to stop the infringement, and the amount of infringement damages shall be determined from the right holder. The calculation shall be calculated forward two years from the date of filing a lawsuit in the People's Court. According to the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases", it can be seen that the infringement period is generally 2 years, and the starting date of the above 2 years is the date when the plaintiff files a civil lawsuit in the people's court with jurisdiction.

Second, the determination of the benefits obtained by the infringer due to the infringement during the infringement period.

Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" stipulates that the benefits obtained from infringement specified in Article 56, Paragraph 1, of the Trademark Law may be based on The sales volume of the infringing product is calculated by multiplying the unit profit of the product; if the unit profit of the product cannot be ascertained, the unit profit of the registered trademark product shall be calculated. The above judicial interpretation provides two calculation methods for calculating the benefits obtained from infringement. The first is the product of the sales volume of the infringing product and the unit profit of the product, that is, the amount calculated by multiplying the sales volume of the infringing product by the unit profit of the infringing product. The second is the product of the sales volume of the infringing goods and the unit profit of the registered goods, that is, the amount calculated by multiplying the sales volume of the infringing goods by the unit profit of the plaintiff's registered trademark goods. Of course, the premise for using the second method is that the profit per unit of the infringing product cannot be ascertained. In addition, there is an unresolved issue here, that is, whether it is the unit profit of infringing goods or the "profit" of the unit profit of registered trademark goods, it can be divided into sales profit, operating profit and net profit. It is obvious that the above profits are gradually decreasing. So which profit should be used as the basis for calculation?

On April 25, 2007, the Supreme People’s Court sued Zhejiang Huatian Industrial Co., Ltd., Nanjing Lianrun Automobile and Motorcycle Sales Co., Ltd., Yamaha Engine Co., Ltd., Taizhou Huatian Motorcycle Sales Co., Ltd. and Taizhou Jiaji Motorcycle Sales Co., Ltd. infringed the exclusive rights of the registered trademarks "Yaha" and "yamaha" in the final civil judgment. Paragraph 3 of Article 20 of the Provisions stipulates that the benefits obtained by an infringer due to infringement are generally calculated according to the infringer's business profits. For infringers who are solely engaged in infringement, they can be calculated based on sales profits. This provision is used to calculate relevant issues. can be used as a reference. In this case, Yamaha Motor Co., Ltd. claimed to determine the amount of compensation based on profits from infringement. The calculation was based on operating profits, not sales profits and net profits, after deducting relevant product sales taxes and surcharges, sales expenses, management expenses and Financial expenses do not need to be deducted from corporate income tax.

Because Taizhou Huatian Motorcycle Sales Co., Ltd. and Taizhou Jiaji Motorcycle Sales Co., Ltd. refused to submit relevant evidence of operating profits and costs to the court of first instance, and did not submit an appeal request to this court, Zhejiang Huatian Industrial Co., Ltd. concerning Yamaha Engine Co., Ltd. This court will not support the club’s argument that the calculation method does not deduct operating costs, income tax and other expenses."

According to the above-mentioned civil judgment of the Supreme People’s Court, it can be seen that profits in infringement damages are generally operating profits. , and for those who are engaged in infringement, the sales profits shall prevail. Obviously, this calculation shows the tendency to punish those who intentionally commit trademark infringement.

Third, the infringed party is guilty of infringement during the infringement period.

Article 15 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Trademark Civil Dispute Cases" stipulates that for infringement as specified in Article 56, Paragraph 1, of the Trademark Law The loss suffered 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. It can be seen that the above judicial interpretation also applies to the losses suffered by the infringed party. Two calculation methods are provided. One of them is the product of the reduction in product sales caused by the infringement multiplied by the unit profit of the infringer's registered trademark products; the second is the product of the sales volume of the infringing products. The product of the unit profit of the infringed party's registered trademark goods

Comparing the second calculation method with the third calculation method, it can be seen that for the same case, different calculation methods will be used. Different amounts of compensation. For example, in an infringement case, the defendant produced ***500 units of infringing goods, and the unit profit of the infringing goods was 10 yuan, and the plaintiff's unit profit of the registered trademark goods was 100 yuan due to the defendant's infringement. In the above examples, different selection criteria will lead to different compensation results. The following calculations are based on the benefits obtained. There are two calculation methods. The first is to multiply the sales volume of the infringing goods by the infringing goods. The amount obtained by multiplying the unit profit of the plaintiff’s registered trademark goods, that is, 500×10=5000; secondly, 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, that is, 500×12= 6,000 yuan. Secondly, the calculation principle is based on the loss suffered. There are two calculation methods. The first is the product of the reduction in sales of the goods caused by the infringement multiplied by the unit profit of the goods registered by the infringer, that is, 100×12=1200. The second is the product of the sales volume of the infringing goods multiplied by the unit profit of the infringed party’s registered trademark goods, that is, 500×12=6000 yuan.

Obviously, the above calculation. Among the methods, the product calculated by multiplying the sales volume of the infringing goods by the unit profit of the infringed goods’ registered trademark is the highest. Article 56 of the Trademark Law stipulates the benefits gained by the infringed party and the losses suffered by the infringer. , is of a selective nature, that is, the plaintiff can choose to use the benefits obtained as the calculation standard, or he can choose to use the losses suffered as the calculation standard. In the above example, based on the profit obtained as the calculation standard, the plaintiff can obtain compensation of 5,000 yuan or 6,000 yuan. However, the prerequisite for the plaintiff to obtain 6,000 yuan compensation is that the profit per unit of the defendant's infringing goods cannot be calculated; in the above example, the plaintiff can obtain compensation of 5,000 yuan or 6,000 yuan. As a calculation standard, the plaintiff can receive compensation of 1,200 yuan or 6,000 yuan, 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. Therefore, this is why 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 Dispute Cases" stipulates that "according to Article 1 of the Trademark Law The first paragraph of Article 56 stipulates that when determining the infringer's liability for compensation, the amount of compensation can be calculated according to the calculation method selected by the right holder." That is, in a trademark infringement case, in order to obtain a larger amount of compensation, the plaintiff can choose the losses suffered by the infringed party due to the infringement during the infringement period, and adopt a calculation method based on the product of the number of infringing goods and the unit profit of the registered trademark goods.

Fourth, determination of statutory compensation.

Paragraph 2 of Article 56 of the Trademark Law stipulates that if the benefits obtained by the infringer as a result of the infringement or the losses suffered by the infringed party as a result of the infringement are difficult to determine as mentioned in the preceding paragraph, the People's Court shall Depending on the circumstances of the infringement, a compensation of less than 500,000 yuan may be awarded. How to determine the above-mentioned 500,000 yuan compensation? Article 16, paragraph 2, of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases stipulates that when determining the amount of compensation, the People's Court shall consider the nature and duration of the infringement. , consequences, the reputation of the trademark, the amount of the trademark license fee, the type, time, scope of the trademark license, reasonable expenses to stop the infringement and other factors are comprehensively determined.

In February 2007, the Supreme People's Court held the 2006 National Intellectual Property Trial Work Conference in Wuxi and proposed that "it is difficult to prove the specific amount of damage or gain from infringement, but there is evidence to prove that the aforementioned amount is obvious. If the maximum limit of statutory compensation is exceeded, the calculation method of statutory compensation does not apply. The amount of compensation should be reasonably determined based on the evidence of the entire case and is above 500,000 yuan before determining the liability for compensation based on the statutory compensation method or other methods. When determining specific calculation factors, the subjective fault of the parties may be taken into consideration to determine the corresponding liability for compensation.” It can be seen that regarding the statutory compensation determined in Article 56 of the Trademark Law, the attitude of the judicial authorities is to respect both the law and objective facts. This is why in some intellectual property infringement cases, the actual compensation amount in the end exceeded 500,000, provided that the plaintiff clearly applied the principle of statutory compensation.

Fifth, 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 25, 2007, the Supreme People’s Court sued Zhejiang Huatian Industrial Co., Ltd., Nanjing Lianrun Automotive and Motorcycle Sales Co., Ltd., Taizhou Huatian Motorcycle Sales Co., Ltd., and Taizhou Motorcycle Co., Ltd. In the second-instance civil judgment that Cargill Motorcycle Sales Co., Ltd. infringed the exclusive right to use the registered trademark "Yamaha" and "yamaha", it was held that "in view of the obvious intention of Zhejiang Huatian Industrial Co., Ltd.'s infringement, and during the trial of the original court and this court, no evidence was provided. Based on the complete financial information, the court of first instance concluded that the amount of compensation claimed by Yamaha Motor Co., Ltd. was not inappropriate. Since the unit profits and benefits derived from the infringing products in this case can be ascertained, Zhejiang Huatian Industrial Co., Ltd. should apply to the infringing products in this case. The calculation method of multiplying the quantity by the profit of a registered trademark product or the appeal request for compensation of less than 500,000 yuan has no factual and legal basis and this court 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 authority can partially transfer the burden of proof to the defendant regarding the sales volume of the infringing goods and the profit per unit of the infringing goods based on the circumstances of the case. If the defendant refuses to provide evidence, , the defendant should bear the adverse consequences of being unable to provide evidence.