Article 56 of the "Trademark Law" stipulates: "The amount of compensation for infringement of the exclusive right to use a trademark shall be the benefits obtained by the infringer due to the infringement during the period of infringement, or the losses suffered by the infringed party due to the infringement during the period of infringement." The losses suffered include the reasonable expenses paid by the infringer to stop the infringement as mentioned in the preceding paragraph, or if the losses suffered by the infringer due to the infringement are difficult to determine, the court shall make a judgment based on the circumstances of the infringement. Compensation of less than RMB 500,000 shall be given. ”

According to the provisions of this article, we can see that there are three ways to calculate compensation for trademark infringement: first, the benefits obtained by the infringer due to the infringement; second, the infringement. The losses suffered by people due to infringement; third, statutory compensation.

(1) The benefits obtained by the infringer due to the infringement

The benefits obtained by the infringer due to the infringement can be clearly understood by obtaining the financial records of the infringer, but in practice it is almost impossible Obtain the true financial records of the infringer. In addition, the infringer is likely to have no actual profit. For example, the infringement is discovered at the beginning, all the goods have not been sold, or the sales volume is very small, not enough to cover the initial packaging costs, etc. Article 14 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Cases stipulates: “The benefits obtained from infringement as stipulated in Article 56, paragraph 1, of the Trademark Law may be based on the sales volume of the infringing product and the unit profit of the product. Product calculation; if the unit profit of the product cannot be ascertained, it shall be calculated based on the unit profit of the registered trademark product.”

(2) The losses suffered by the infringed party due to infringement

Infringement. How to calculate the losses suffered by a person due to infringement? Article 15 of the "Interpretation on Several Issues Concerning the Applicable Law in the Trial of Trademark Civil Dispute Cases" stipulates: "The losses suffered due to infringement as stipulated in Article 56, Paragraph 1 of the Trademark Law , can be calculated based on the reduction in sales of the right holder’s goods due to infringement or the product of the sales volume of the infringing goods and the unit profit of the registered trademark. “In fact, we cannot simply think that the decrease in sales is due to infringement. There are countless reasons for sales decline. Every product has its life cycle, and it will inevitably decline at the end of its life. If the sales volume of the product brand is in its peak period, it is very likely that the sales volume has not declined, so how to calculate this? The "Interpretation of Several Issues Concerning the Applicable Laws in the Trial of Trademark Civil Dispute Cases" takes these factors into full consideration. If the infringed party's sales volume decreases, It is impossible to calculate. The amount of compensation can be calculated based on the sales volume of the infringing product of the infringer and then multiplied by its own unit profit.

(3) Statutory compensation

Article 16 of the "Interpretation on Several Issues Concerning the Applicable Law in the Trial of Trademark Civil Dispute Cases" stipulates: "The benefits obtained by the infringer due to the infringement or the infringement If it is difficult to determine the losses suffered by a person due to infringement, the court may determine the amount of compensation based on the request of the party or by applying the provisions of Article 56, paragraph 2, of the Trademark Law ex officio. Applicable only when neither of the first two methods can be calculated. Statutory compensation is subject to the discretion of the judge up to 500,000 yuan, and the judge has the final say below 500,000 yuan. Paragraph 2 of Article 16 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases" stipulates: "When determining the amount of compensation, the People's Court shall consider the nature, duration and consequences of the infringement, the reputation of the trademark, the trademark license fee The amount, the type, time and scope of the trademark license and the reasonable expenses to stop the infringement shall be comprehensively determined. "The judge must comprehensively consider the various factors specified. In practice, some courts directly calculate the infringement compensation based on the license fee. , calculating compensation based on license fees, the amount of compensation is likely to be greater than 500,000 yuan.