When the state sets administrative penalties for trademark infringement and illegal use of trademarks, it sets the fine range according to the amount of illegal business.
The specific amount of illegal business, the relevant laws and regulations of the state have no provisions on how to calculate the amount of illegal business.
However, the following laws, judicial interpretations or normative documents have corresponding provisions on how to calculate the amount of illegal business or the value of illegal products in intellectual property cases, which can be used as a reference for calculating the amount of illegal business in trademark infringement cases:
1. The amount of illegal business operation refers to the value of infringing products manufactured, stored, transported and sold by the actor in the process of infringing intellectual property rights. The value of the infringing products that have been sold shall be calculated according to the actual selling price. The value of infringing products manufactured, stored, transported and unsold shall be calculated according to the marked price or actual average selling price of the infringing products that have been identified. If the infringing product is not marked or its actual sales price cannot be determined, it shall be calculated according to the intermediate market price of the infringed product.
2. The value of the goods is calculated by the marked price of the illegally produced and sold products; If there is no marked price, it shall be calculated according to the market price of similar products.
3. In the process of investigating trademark infringement cases, trademark marks that infringe upon the exclusive right to use trademarks of others and raw and auxiliary materials seized on the spot that are only used to manufacture infringing goods belong to infringing goods.
4. When calculating the value of products infringing on counterfeit registered trademarks that are manufactured, stored, transported and unsold, if there is reliable and sufficient evidence to prove that the products that have been manufactured but are not attached (including attached) or are not fully attached (including attached) with counterfeit registered trademarks, the value will be included in the illegal business.
5. The illegal business volume of service trademark infringement mainly refers to the business volume generated by the infringer due to the infringement during the infringement period. Under normal circumstances, the amount generated by the unauthorized use of a trademark identical with or similar to another person's service trademark to engage in service behavior is illegal business amount. If there is only advertising behavior and no service is performed, the illegal business amount shall be calculated by advertising expenses; If there are only bills providing services and no evidence of corresponding services is found, the amount of illegal business shall be calculated based on the bill amount.
The amount of illegal business operation mentioned in the Trademark Law includes not only the amount of illegal business operation in trademark infringement, but also the amount of illegal business operation in trademark illegal use. It is appropriate to stipulate the calculation standard of illegal business amount.
When defining the calculation standard of illegal business amount of trademark infringement cases, in addition to referring to the aforementioned laws, judicial interpretations and normative documents, the following factors should also be fully considered:
First, in business practice, it is common for both parties to bargain under the seller's bid, and the actual selling price is often lower than the bid, at most equal to the bid. Usually, the value of unsold infringing goods is calculated according to the actual average selling price, which can reflect the real pricing of unsold infringing goods by infringing parties and related customers more fairly and reasonably; However, it should also be fully considered that in the later stage of infringement, the infringer will indeed lower the marked price on the basis of the previous actual selling price to promote sales or even dump goods. In this case, it is more objective and reasonable to calculate the value of unsold infringing goods according to their marked prices.
Second, packaging labels with infringing trademarks belong to infringing goods, and their value should be included in illegal business.
Third, the value of service facilities, service goods and service marks with infringing trademarks used by the infringer for service operation is also an infringing commodity in essence and should be included in the illegal business amount of service trademark infringement.
Fourth, advertising materials using infringing trademarks (including TV, radio and Internet advertising services) are also infringing goods, and their value should be included in the illegal business volume of trademark infringement.
The illegal business amount mentioned in the Trademark Law refers to the value of infringing and illegal goods manufactured, stored, transported and sold by the actor in the process of trademark infringement. The value of infringing and illegal goods that have been sold shall be calculated according to the actual sales price. The value of manufactured, stored, transported and unsold infringing and illegal products shall be calculated according to the actual average selling price of the identified infringing and illegal products, but if the price of unsold infringing and illegal products is lower than the actual average selling price, it shall be calculated according to the marked price. It is impossible to find out the actual sales price. If there is a marked price, it shall be calculated according to the marked price. If there is no marked price, it shall be calculated according to the market intermediate price of the infringed product or the market intermediate price of similar products with illegal products.
When calculating the value of trademark infringement and illegal goods manufactured, stored, transported and unsold, the value of semi-finished products and packaging labels with infringing and illegal trademarks shall be included in the illegal business volume, and the value shall be calculated according to the actual cost of semi-finished products and packaging labels; If there is sufficient evidence to prove that the goods that have been produced but have not been labeled with infringing trademarks will infringe the registered trademark rights of others, their value will be included in the illegal business amount.
The illegal business amount of service trademark infringement refers to the business income generated by the infringer during the infringement period. The value of service facilities, service articles and service marks with infringing trademarks used by the infringer for service operation shall be included in the illegal business amount according to the actual cost.
In the process of trademark infringement, if the actor uses the infringing trademark for advertising, the advertising expenses shall be included in the illegal business amount.
To sum up, the acquisition of a trademark must go through the prescribed procedures, so that other companies can't infringe the registered trademark of our company. Trademarks are protected by law, and registrants enjoy exclusive rights. Although according to the relevant national laws and regulations, there is no clear standard for the amount of illegal business, the provisions have made clear requirements for the amount of illegal business.