Punitive damages in trademark infringement disputes in China: challenges and prospects

Abstract

Punitive damages were introduced into the intellectual property field in China by legislation permitting their imposition for malicious and serious infringements. This paper offers a comprehensive legal framework of punitive damages regarding trademark infringement and a critical analysis of the application of punitive damages in trademark infringement disputes in Chinese judicial practice. My research reveals that punitive damages have rarely been imposed since the punitive damages provision, Article 63 of the Trademark Law, took effect in 2014, whereas statutory damages have been applied extensively. The reason for this is that there are few guidelines for the application of this provision. The challenges to the application include undefined statutory requirements, difficulties in not only assessing compensation but also providing evidence and determining the multiple of compensation, and an unclear relationship between statutory damages and punitive damages. The 2019 Amendment of the Trademark Law retains these problems. Fortunately, the recently released Judicial Interpretation and typical cases concerning punitive damages contribute to resolving them. Moreover, those cases in which punitive damages have been applied have gradually revealed some basic principles for their application. Reform suggestions are offered in order to stimulate the development of a more thorough and uniform application of the punitive damages provision.