How to calculate compensation for liability for trademark infringement?

In today's information age, as technology continues to develop, some people also use it to make shady money, such as copycat items. For consumers, they pay more attention to the brand of the items they purchase. Many unscrupulous merchants directly quote trademarks and pretend to be one of their own stores with false information. Today, the editor of Legal Savior Network will teach you how to calculate compensation for trademark infringement.

1. How to calculate compensation for liability for trademark infringement

Trademark Law 》Article 63

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; if the actual losses are difficult to determine, the amount of compensation may be determined based on the benefits gained by the infringer due to the infringement; the losses suffered by the right holder or the gains gained by the infringer If it is difficult to determine the interests of the trademark, it shall be reasonably determined by referring 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 will determine the amount of compensation when the right holder has tried its best to provide evidence and the account books and materials related to the infringement are mainly controlled by the infringer. Under certain circumstances, the infringer may be ordered 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.

When hearing trademark dispute cases, the People's Court shall, at the request of the rights holder, order the destruction of goods belonging to counterfeit registered trademarks, except under special circumstances; goods mainly used for manufacturing Materials and tools used to counterfeit goods with registered trademarks shall be ordered to be destroyed without compensation; or in special circumstances, the aforementioned materials and tools may be ordered to be prohibited from entering commercial channels without compensation.

Products with counterfeit registered trademarks shall notEnter business channels after counterfeiting registered trademarks.

According to this provision, it can be seen that there are three calculation methods for trademark infringement compensation:

1. The benefits obtained by the infringer due to infringement;

That is, the amount of compensation is calculated based on the amount of benefits obtained from infringement of other people's trademarks.

2. The losses suffered by the infringed party due to the infringement;

That is, based on the subsequent cause The amount of compensation is calculated based on the losses caused by trademark infringement.

3. Statutory compensation.

That is, the court will decide the amount of compensation.

2. Types of trademark infringement

《Trademark Article 57 of the Law stipulates the following seven types of behavior that infringe the exclusive rights of registered trademarks:

(1) Without the permission of the trademark registrant, Using the same trademark as its registered trademark on the same kind of goods;

(2) Using the same trademark as its registered trademark on the same kind of goods without the permission of the trademark registrant Similar trademarks, or the use of identical or similar trademarks on similar goods that are likely to cause confusion;

(3) Sales that infringe the exclusive rights of registered trademarks goods;

(4) Forging or manufacturing registered trademarks of others without authorization or selling counterfeit or unauthorized registered trademarks;

(5) Changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back on the market;

(6) Intentionally providing facilities for infringement of the exclusive rights of others' trademarks and helping others to infringe the exclusive rights of trademarks;

(7) Giving Any other damage caused by the exclusive right to use a registered trademark of others.

3. How to determine trademark infringement

From the perspective of China's "Trademark Law", trademark infringement The constitution usually includes the following elements:

First, it causes damage or is about to cause damage, that is, the infringement has caused damage to the trademark owner or is about to cause damage. It manifests as a decrease in product sales, a decrease in profits or a decrease in trademark reputation.

The second is the illegality of the behavior, that is, the perpetrator is without permission and has no other legal basis. And objectively exercise the rights enjoyed by the trademark owner in accordance with the law.

Third, the damage consequences are causally related to the illegal behavior, that is, the damage consequences are directly caused by the illegal behavior

The fourth is the subjective state, including fault and no fault. Generally speaking, the perpetrator illegally uses the same or similar trademark as the registered trademark. Trademarks, counterfeiting, unauthorized production of other people's registered trademarks, reverse counterfeiting of registered trademarks, the subjective fault of the perpetrator shall be the essential factor in determining whether the infringement is infringement; and for the act of selling goods with counterfeit registered trademarks, the determination of whether infringement is infringement The subjective fault of the perpetrator is not required.

[Warm Tips]The above is what the editor of Legal Savior Network summarized . This is based on the experience of current issues. Courts in different regions have subtle differences in trial standards. When handling cases, you must choose a professional lawyer, click for quick consultation, communicate with the lawyer one-on-one about your legal claims, and safeguard your legitimate rights and interests.