Nowadays, trademark infringement cases often appear, which are generally solved through the courts. Whoever infringes will pay a certain amount of tort damages. So how to calculate the amount of trademark infringement damages in a trademark infringement case? Determine the amount of infringement compensation by the calculation method stipulated in the Trademark Law: Article 39 of the Trademark Law stipulates: Compensation for the losses of the infringed, the amount of compensation is 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 the Exclusive Right to Use a Trademark" (hereinafter referred to as "Reply") stipulates that in trademark infringement cases, the infringed may claim compensation according to the actual losses suffered by him, or claim the profits (all profits except costs and taxes) obtained by the infringer during the infringement period as compensation. The victim has the right to choose the above two calculation methods. ? This "Reply" further standardized the operation of the calculation method of trademark invalidation compensation to a certain extent, but in view of the fact that it has been ten years and faced with a large number of new litigation cases, it is difficult to apply it in trial practice. The legal provisions and judicial interpretation seem simple and clear, but they are far from it in litigation practice. The difficulties are mainly in the following two aspects. First, how to define the infringer for infringement and profit accounting? Infringement profit? There are different opinions in judicial practice, which need to be solved urgently. The first is the determination of profits. ? Profit? It is a vague concept, which can be divided into production profit (total sales MINUS production cost), sales profit (production profit MINUS sales cost), operating profit (sales profit MINUS management expenses of management department), after-tax profit (profit after deducting operating profit, that is, pure profit) and so on. So, what kind of profit is the reply? "Reply" explanation? Infringement profit? Refers to all profits except cost, then? Cost? How is the scope defined and does it include the expenses of the management department? At present, the common treatment method is to understand profit as sales profit, that is, all profits after deducting production costs and sales are divided into three parts. Secondly, the determination of sales quantity. How to deal with some products under special circumstances has become an unavoidable problem. 1, inventory. Because the inventory has not yet entered the circulation field and has not caused substantial damage to the trademark owner's market, it should not be included in the total sales. If the infringer is willing to buy the inventory at a discount, he can buy it; Otherwise, it will be ruined. 2. Unsold infringing products in the process of consignment and distribution. They have different legal nature and different legal consequences. The ownership of the consignment products has not been transferred, although it has caused some potential damage to the exclusive owner's market, it is still treated as inventory. The ownership of issued products has been transferred and has substantially entered the circulation field, which poses a real threat to the sales market of rights products and should be included in the total sales. 3. Returned infringing products. Due to other reasons of product quality, the returned infringing products should be treated as inventory. Many scholars believe that the compensation for trademark infringement should be inspired by the compensation methods for patent infringement, and the amount of compensation should be no less than the trademark use fee. Although this adds another method to the calculation of trademark compensation, we should also pay attention to some problems. The way of licensing, the geographical scope of trademark licensing agreed by the parties, the scale of use and the time limit are different. The inconstancy of trademark royalties is also reflected in the fact that when the infringement disaster occurs, the obligee does not always license its trademark in some way. If not, can you choose one as the method to calculate the loss? If you choose a general license, can you still choose an exclusive license that is beneficial to you? In addition, the license fee is a kind of contract behavior, and its cost is determined by the parties through consultation; Then, it is unfair to both parties to choose the licensing method afterwards to determine the usage fee at the market price. Determine the trademark value according to the trademark design fee and calculate the compensation amount. Most trademarks are designed by professionals such as trademark offices and arts and crafts colleges 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. Using trademark design fees to calculate the amount of trademark infringement compensation may lead to differences in the amount of compensation after accounting because the amount of trademark design fees involved in each case is different. In this regard, we should realize that trademarks are intangible assets, and it is impossible for entrepreneurs or judges to artificially set universal value standards. Trademark design fee is the amount agreed by the parties voluntarily, representing the same value as the client, and the difference is reasonable and normal. Of course, this also leads to the limitations of this calculation method. The purpose of using trademarks by producers and operators is to sell goods and provide 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. The application of this calculation method also needs to pay attention to the estimation of the infringer's income, which may also be the biggest trouble faced by judges. If the parties to the case have foreign enterprises, the judge can adopt the internationally accepted rate of return on advertising investment; If it is a lawsuit between domestic parties, it is indeed a difficult problem to adopt the rate of return. Assessing the amount of infringement compensation with intangible assets. All countries in the world have relatively perfect intangible assets evaluation systems, and most of the world famous trademarks are valuable. The evaluation of trademark value in China is mainly based on the transfer and license of trademark rights. In the trial practice, the court encountered a considerable number of trademark licensing transfers, and did not evaluate the value; The value is mainly determined by the transferor and the transferor himself. To this end, some people think that if the infringed party submits the trademark evaluation value standard, the amount of infringement compensation can be directly calculated and determined; You can also entrust an evaluation agency to evaluate the value of the infringed trademark in the lawsuit. Trademark value is the value of intangible assets owned by the trademark owner as a whole, including the present value of trademark income, trademark proportional fee rate, trademark fixed fee and other items; The final evaluation of trademark value represents the value of normal transfer and license. When using the value of this trademark, the judge must verify the number of products produced by the trademark infringer using other people's trademarks, and deduct the costs and taxes before determining the amount of compensation. In litigation, if the infringed trademark has not been evaluated, or the existing materials can no longer be evaluated, the judge may use the transfer fee or license fee standard agreed in the contract to determine the amount of compensation. Judging the amount of compensation by the infringer's subjective malice, the development of trademark infringement damage compensation system in China is not long, the trademark evaluation work can not fully meet the needs of the market for the time being, and the existing laws and regulations are lagging behind and helpless. Especially in the production and operation activities of enterprises, there is a lack of standardized intangible property registration, accounting and trading, and related financial records are chaotic. Faced with this situation, the court must still conclude the litigation disputes in a timely and fair manner. Therefore, in the case that other compensation calculation methods are difficult to apply, the judge can only make a judgment on the amount of compensation according to the specific circumstances of the case. One of the biggest intellectual property cases, Huo Zeng, the presiding judge of the patent case of Foshan Ceramic Research Institute, said? Most of the work of the court is actually to find reasonable evidence of the defendant. ? For example, in addition to the subjective malice of the infringer, the implementation mode of the infringement, the implementation time of the infringement, the harm to the social and economic order and other factors, the judge should also consider the time and region of the infringed, the well-known degree of the trademark, the market share and so on, and comprehensively consider the amount of compensation. Reference reading: trademark infringement compensation standard This means that the most flexible judgment of compensation amount is the most difficult, and it also requires the judge to be cautious and decisive. At this time, the presiding judge's litigation practice, the level of trademark expertise, the analysis of the legal relationship of disputes caused by different causes, the right or wrong judgment results and the public's cognition are all affecting the judgment of the case. There is no doubt that the judge is the executor of the law, but he does not copy the law mechanically. Only by constantly paying attention to the study of typical cases in litigation practice and summarizing the laws of * * * *, can we avoid legal defects and make the basis conform to the legal provisions. Judges are free to judge? Judicial punishment for infringers and effective judicial relief for victims will eventually form flexible and practical calculation methods and standards for trademark infringement compensation in judicial practice.