1. How to calculate compensation for continuous trademark infringement
According to the Supreme People’s Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Disputes Promulgated by the Court"
Article 18 The statute of limitations for infringement of the exclusive right to use a registered trademark is three years, starting from The calculation shall be calculated from the date when the trademark registrant or the interested rights holder knew or should have known that the rights were harmed and the obligor was liable. If the trademark registrant or interested party files a lawsuit more than three years ago, if the infringement is still continuing at the time of the lawsuit, within the validity period of the exclusive right to use the registered trademark, the people's court shall order the defendant to stop the infringement, and the amount of infringement damages shall be determined from the right holder. The calculation shall be calculated forward three years from the date of filing a lawsuit in the People's Court.
Article 63 of the Trademark Law stipulates that the amount of compensation for infringement of the exclusive right to use a trademark shall be determined based on the actual losses suffered by the right holder due to the infringement; actual losses are difficult to If it is determined, it can be determined based on the benefits obtained by the infringer due to the infringement; if it is difficult to determine the loss of the right holder or the benefits obtained by the infringer, it can be reasonably determined with reference to the multiple of the trademark license fee. For malicious infringement of trademark exclusive rights and the circumstances are serious, the amount of compensation may be determined to be not less than one time but not more than five times the amount determined according to the above method. The amount of compensation should include the reasonable expenses paid by the right owner to stop the infringement.
In order to determine the amount of compensation, the people's court may, if the right holder has tried its best to provide evidence and the account books and materials related to the infringement are mainly in the possession of the infringer. Order the infringer to provide account books and materials related to the infringement; if the infringer fails to provide or provides false account books and materials, the people's court may determine the amount of compensation with reference to the rights holder's claims and the evidence provided.
If it is difficult to determine the actual losses suffered by the right holder due to the infringement, the benefits obtained by the infringer due to the infringement, and the registered trademark license fee, the People's Court shall decide based on Depending on the circumstances of the infringement, a compensation of less than five million yuan may be awarded.
Hearing by the People's CourtIn trademark dispute cases, at the request of the right holder, goods belonging to counterfeit registered trademarks shall be ordered to be destroyed, except in special circumstances; materials and tools mainly used to manufacture goods with counterfeit registered trademarks shall be ordered to be destroyed without compensation; or in Under special circumstances, the aforementioned materials and tools may be ordered to be prohibited from entering commercial channels without compensation.
Goods with counterfeit registered trademarks shall not enter commercial channels after only removing the counterfeit registered trademarks.
2. There are three types of compensation for trademark infringement Calculation method:
1. The benefits obtained by the infringer due to the infringement; if the benefits obtained by the infringer due to the infringement are calculated strictly in accordance with the financial system That is very complicated. First, in practice, it is almost impossible to obtain the infringer’s complete and true financial records. Second, the infringer may not have actual profits. For example, if the infringement is discovered at the beginning, all the goods will still be unavailable. There are no sales or the sales volume is very small, which is not enough to cover the initial packaging and other expenses.
The High Court’s explanation further simplifies this issue. The benefits obtained from infringement can be calculated based on the product of the sales volume of the infringing product and the unit profit of the product; if the unit profit of the product cannot be ascertained, it shall be calculated based on the unit profit of the registered trademark product. This method is more applicable in practice and is relatively easier from the perspective of investigation and evidence collection, so it is the preferred method.
2. The losses suffered by the infringed party due to infringement; this method is very unreasonable. How to calculate the losses suffered by the infringed party due to infringement? The losses suffered due to infringement can be calculated based on the reduction in sales of the goods caused by the infringement or the product of the sales volume of the infringing goods and the unit profit of the registered trademark goods.
3. Statutory compensation. If it is difficult to determine the benefits gained by the infringer due to the infringement or the losses suffered by the infringed party due to the infringement, the people's court may determine the amount of compensation based on the request of the party or by applying the provisions of the Trademark Law ex officio.
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