Where a registered trademark of another person is infringed and losses are caused to the trademark owner, the infringer needs to compensate the trademark owner. When making compensation for trademark infringement, the amount of compensation is generally the profit obtained by the infringer in carrying out the infringement, or the compensation is limited to the losses suffered by the infringer during the infringement period. According to the regulations, the infringed party has the right to choose between these two methods for calculating trademark infringement compensation.

First, how to compensate for trademark infringement

#3p4# Determine the amount of infringement compensation by the calculation method specified in the Trademark Law.

Article 39 of the Trademark Law stipulates: "Compensation for the losses of the infringed shall be the profits gained by the infringer or the losses suffered by the infringed during the infringement." The Supreme People's Court's "Reply on How to Calculate the Amount and Time Limit of Damages for Infringement of Trademark Right" stipulates: "In a case of infringement of trademark right, the infringed may request compensation according to the actual amount of losses suffered by him, or he may request that the profits (excluding costs and taxes) obtained by the infringer during the infringement period be taken as the compensation amount. The infringer has the right to choose the above two calculation methods. "

2. Determine the trademark value and calculate the remuneration according to the trademark design fee.

Most trademarks are designed by professionals such as the Trademark Office and the Academy of Arts and Crafts entrusted by the applicant, and the trademark applicant pays a trademark design fee. This fee is agreed by both parties to the contract, which is more objective. A judge may borrow the amount of trademark design fees and order the infringer to provide the number of trademarks used by others. After averaging the trademark design fees, verify the value of each trademark, and then multiply the trademark value by the total number of trademarks illegally used by others as infringement compensation.

3, trademark sales area and advertising funds approved compensation.

Producers and operators use trademarks for the purpose of selling goods and providing services. From the geographical range of goods and services between the infringer and the victim, we can see the actual area of infringement and calculate the share of infringing goods in the market. If we know the advertising expenses invested by a trademark owner on the goods, and if the advertising expenses confirmed by the international advertising industry survey statistics can generally bring 20% growth to its goods and services, that is, 20% return, the court can calculate the amount of trademark infringement compensation.

4. Determine the amount of compensation according to the specific circumstances such as the subjective malice of the infringer.

In practice, the judge should not only consider the subjective malice of the infringer, the implementation mode of the infringement, the implementation time of the infringement and the harm to the social and economic order, but also consider the time, region, reputation and market share of the infringer's use of the trademark, and comprehensively consider the amount of compensation.

Second, how to determine the amount of compensation for trademark infringement?

According to Article 63 of the Trademark Law, the amount of compensation for infringement of the exclusive right to use a trademark shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement; If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by referring to the multiple of the trademark license fee. In case of malicious infringement of the exclusive right to use a trademark, if the circumstances are serious, the amount of compensation may be determined in accordance with the amount determined by the above method. The amount of compensation shall include the reasonable expenses paid by the obligee to stop the infringement. In order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement if the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly held by the infringer; If the infringer fails to provide or provide false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided. If it is difficult to determine the actual losses suffered by the obligee due to infringement, the interests gained by the infringer due to infringement, and the license fee for registered trademarks, the people's court shall award compensation of less than 3 million yuan according to the circumstances of the infringement.

If you find that your trademark right has been infringed, you can negotiate with the other party first and then resolve the dispute; If the parties do not agree to the negotiation or the negotiation fails, the trademark persuader or interested party may bring a lawsuit to the people's court or request the market supervision department to handle it. If both parties have disputes over the amount of compensation, they may request the market supervision department for mediation, or bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).