If a company discovers that its trademark has been infringed by someone else, causing economic losses, it can demand compensation from the other party in accordance with the law. So how to compensate for trademark infringement? I believe many people who encounter trademark infringement want to know its compensation standards. Below, the editor of Hualv.com will mainly introduce the relevant knowledge of compensation standards for trademark infringement.
The amount of compensation for trademark infringement is clearly stipulated in the newly implemented Trademark Law.
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 as a result of the infringement; If the actual loss is difficult to determine, it can be determined based on the benefits obtained by the infringer due to the infringement; If it is difficult to determine the losses suffered by the rights holder or the benefits obtained by the infringer, the reasonable determination shall be based on the multiple of the trademark licensing fee. For malicious infringement of trademark exclusive rights, if the circumstances are serious, the compensation amount may be determined at a rate of one to three times the amount determined by the above method. The compensation amount should include the reasonable expenses paid by the right holder to stop the infringement.
In order to determine the amount of compensation, if the right holder has made every effort to provide evidence and the books and materials related to the infringement are mainly held by the infringer, the people's court may order the infringer to provide books and materials related to the infringement; If the infringer fails to provide or provides false account books or materials, the people's court may refer to the claims and evidence provided by the rights holder to determine the amount of compensation. If it is difficult to determine the actual losses suffered by the rights holder due to infringement, the benefits obtained by the infringer due to infringement, or the registration trademark license fee, the people's court shall award compensation of up to three million yuan based on the circumstances of the infringement.
Article 56 of China's Trademark Law stipulates that the amount of compensation for infringement of trademark exclusive rights shall be the benefits obtained by the infringer during the infringement period, or the losses suffered by the infringed party during the infringement period, including reasonable expenses paid by the infringed party to stop the infringement. If the benefits obtained by the infringer due to infringement or the losses suffered by the infringed party due to infringement are difficult to determine, the people's court shall award compensation of up to 500000 yuan based on the circumstances of the infringement. This regulation seems to have a relatively complete amount of compensation for trademark infringement, but there are problems in practical operation. The most specific ones are the benefits obtained from non infringement, the losses suffered by the infringed party, and how to determine the specific amount.
Calculation of Profit from Infringement
Regarding the calculation of benefits obtained by infringers due to infringement, Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases" (hereinafter referred to as the "Interpretation") stipulates that "the benefits obtained from infringement as stipulated in Article 56 (1) of the Trademark Law may be calculated based on the sales volume of infringing goods and the unit profit of the goods; if the unit profit of the goods cannot be determined, it shall be calculated based on the unit profit of the registered trademark goods." The State Administration for Industry and Commerce also stipulated in its "Opinions on Several Issues Concerning Trademark Administrative Law Enforcement" on December 29, 1999 that "the profits obtained by infringers during the infringement period generally refer to sales revenue minus costs and taxes payable. The calculation of sales revenue only involves the actual income of the infringer, that is, the income from the sold goods does not include inventory goods. ”
Although the above two calculation methods are different, their benchmarks are both based on obtaining profits through infringement. However, in business operations, the profits obtained by enterprises can be divided into three types: main business profits, total profits, and net profits. Main operating profit refers to all revenue obtained from sales, after deducting costs; The total profit refers to pre tax income, and income tax should be refunded as part of the sales compensation. Other expenses should be deducted, and product sales tax is not refunded; Net profit refers to profits that should not only deduct costs, but also other expenses, and the compensation amount should be based on the net profit obtained by the infringer during the infringement period. It is reasonable to choose the main business profit as the amount of compensation for infringement in terms of profit obtained from infringement. There is no need to pay income tax not generated by one's own business to protect the interests of the infringed party, and it is also conducive to deterring infringement behavior.
However, for cases where the object of trademark infringement is only one or a few products of the trademark owner, rather than all products, different calculation methods should be adopted. A practical calculation formula in practice is: Infringement profit=Total sales during infringement period x Infringing product distribution ratio x Profit margin. Among them, the proportion of infringing goods refers to the proportion of infringing goods in all goods, and according to the above discussion on profits obtained from infringement, the product of total sales during the infringement period and the proportion of infringing goods is the main operating profit mentioned above.
