Article 56 of the Trademark Law stipulates: "The amount of compensation for infringement of the exclusive right to use a trademark shall be the interests gained by the infringer during the infringement period or the losses suffered by the infringer during the infringement period, including the reasonable expenses paid by the infringer to stop the infringement. If the interests of the infringer mentioned in the preceding paragraph or the losses suffered by the infringer due to infringement are difficult to determine, the people's court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. " According to the provisions of this article, we can see that there are three ways to calculate trademark infringement compensation: 1, the interests obtained by the infringer due to infringement; 2. The losses suffered by the infringed party due to infringement; 3. Legal compensation.

The law stipulates three ways to calculate compensation. How to apply them in practice? Article 13 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes (hereinafter referred to as the Interpretation) stipulates: "When the people's court determines the infringer's liability for compensation according to the provisions of the first paragraph of Article 56 of the Trademark Law, it may calculate the amount of compensation according to the calculation method selected by the obligee." In other words, the infringed can choose whether to apply the first calculation method or the second calculation method. If neither method can be calculated, the court can directly apply the third method.

Second, the application of the first calculation method (the benefits obtained by the infringer due to infringement)

It is very complicated to calculate the infringer's benefits from infringement strictly according to the financial system. First, it is almost impossible to obtain the complete and true financial records of the infringer in practice. Second, the infringer may not actually make a profit. For example, when the infringement is discovered at the beginning, the goods have not been sold completely or the sales volume is very small, which is not enough for the early packaging and other expenses. The interpretation of the High Court further simplifies the problem. Explain Article 14: "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 the infringing goods and the unit profit of the goods; If the unit profit of a commodity cannot be determined, it shall be calculated according to the unit profit of a registered trademark commodity. " COFCO sued Beijing Jiayu Oriental Liquor Co., Ltd. and other companies for trademark infringement, and the court ruled that the defendant 15527479 yuan. This case has aroused widespread concern in the society because the subject matter amount is over 100 million yuan. As far as I know, the first calculation method is applicable to the calculation of compensation, and Article 14 of the Interpretation is more explicit. The preparation of COFCO's prosecution was very sufficient, and the defendant's goods were quickly seized and some financial information was obtained. According to the financial data, the court calculated the sales volume of the defendant's infringing products, and roughly calculated the profit of each bottle of wine as 9 yuan. Finally, the figure of 15527479 yuan is the amount of compensation.

This method is widely used in practice, and it is relatively easy from the perspective of investigation and evidence collection, so it is the first choice.

Three. Application of the second calculation method (losses suffered by the infringed party due to infringement)

This road is very uncertain. How to calculate the losses suffered by the infringed person because of infringement? Interpretation of Article 15: "The losses suffered by infringement as stipulated in the first paragraph of Article 56 of the Trademark Law can be calculated according to the reduction of the sales of goods caused by the infringement or the product of the sales of infringing goods and the profit of the registered trademark goods." This method is actually difficult to apply in practice. We cannot simply think that the decline in sales volume is caused by infringement. There are countless reasons for the decline in sales. Every product has its life cycle, and it will inevitably decline at the end of the product life. If the product is in its heyday, the sales volume is likely not to decline, so how to calculate this? There are also thousands of reasons for the decline in unit profits. Sometimes, in order to expand the market share, manufacturers cut their own prices, so the unit profit will inevitably decline, which has nothing to do with the infringer.

In practice, compensation calculated in this way is rarely seen at present.

Four. Application of the third calculation method (statutory compensation)

Article 16 Interpretation: "If it is difficult to determine the benefits obtained by the infringer or the losses suffered by the infringed, the people's court may, at the request of the parties or ex officio, apply the provisions of the second paragraph of Article 56 of the Trademark Law to determine the amount of compensation."

Statutory compensation has preconditions, and it is only applicable if the first two methods cannot be calculated. The statutory compensation ranges from 0 to 500,000 yuan at the discretion of the judge, and the judge has the final say below 500,000 yuan. The range from 0 to 500,000 is too large, but please rest assured that the judge did not say it casually. Explain the second paragraph of Article 16: "When determining the amount of compensation, the people's court shall consider the nature, period and consequences of the infringement, the reputation of the trademark, the amount of trademark licensing fees, the types, time and scope of trademark licensing, and the reasonable expenses paid to stop the infringement." The judge should comprehensively consider various factors stipulated, among which trademark license is relatively applicable. In practice, some courts directly calculate infringement compensation according to the license fee, and calculate compensation according to the license fee, and the compensation amount is likely to be more than 500,000 yuan.

Verb (abbreviation for verb) reasonable expenses

If we carefully understand Article 56 of the Trademark Law, reasonable expenses should only be calculated according to the second method. Theoretical circles also have different views on this issue. In practice, the judgments of various courts are also inconsistent. As lawyers, all trademark infringement cases, no matter which way to calculate infringement compensation, like to calculate reasonable fees, and often get the support of judges.