"The interpretation and application of" the Supreme People's Court on the law applicable to a number of cases of civil disputes in the understanding of trademark

    Four, trademark infringement dispute case jurisdiction

    Trademark infringement dispute lawsuit jurisdiction, divided into jurisdiction by level and territorial jurisdiction. On the grade jurisdiction, the Supreme People's Court promulgated in 2002 January "on the trial of trademark cases relating to jurisdiction and law application range of issues of interpretation" article second, paragraph four of third made clear: "the first instance of civil cases of trademark disputes, the above intermediate people's court jurisdiction. Each higher people's court according to the actual situation of this area, the approval of the Supreme People's court, can determine the 1 ~ 2 the basic level people's Court of first instance of civil cases of trademark disputes in a large city." At present the country more than 400 intermediate people's court can accept the case according to law Trademark Civil disputes. Due to the provisions of the jurisdiction of the specific practice, general won't because of grade jurisdiction disputes. But the trademark infringement dispute case jurisdiction, often become the focus of dispute litigation jurisdiction.

    The civil procedure law twenty-ninth stipulation about tort litigation, jurisdiction by the infringement or the people's court at the domicile of the defendant. The Supreme People's court "on the application of the Civil Procedure Law of the views of a number of" the twenty-eighth regulation, to tort litigation law twenty-ninth civil, including the place of tort, tort results happen. The trial practice of many years, place of tort is easier to determine and judgment, not to dispute. As trademark and other intellectual property cases involving the protection of intangible property, is different from general civil disputes; commodity trademark attached to goods and commodities, and has the negotiable nationwide, which occurred more understanding to the result of tort civil law judicial interpretation in practice, there is a certain degree of chaos. The majority of jurisdictional disputes have occurred in the case of infringement of the territorial jurisdiction, the focus of controversy is how to understand and identify the "tort results happen". Some argue that "the plaintiff is damaged, the plaintiff's domicile is the result of tort occurred", it became "the plaintiff's" the jurisdiction of the state.The basic principle of the jurisdiction of this would violate the determination of Civil Procedure Law "the plaintiff to the defendant".

    "Provisions of the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark interpretation" in article sixth, the place of tort specific explanation for the implementation of the provisions of article thirteenth, article fifty-second of the Trademark Law of tort. At the same time, a lot of hidden storage consideration relates to the infringing goods emerging in practice, and the customs and other administrative organs to the seizure of infringing copies seizure case, jurisdiction is not clear, clear provisions of the infringing commodities are stored, or customs, industry and commerce administrative organs in accordance with the law, seizure seizure of infringing goods are located, the defendant the place of residence, as determined under the jurisdiction of the basis, and no longer separately to the result of tort.

    Another important issue is the territorial jurisdiction, jurisdiction of trademark infringement dispute cases involving the joint action. For trademark infringement behavior constitutes a complex, often have different processes and links. According to the provisions of the trademark law and its implementing regulations, forms of infringement of the exclusive right to use trademarks including tort, tort and sales, counterfeit, or to make others registered trademarks, trademarks, selling unauthorized manufacture, storage and other tort. The implementation of the behavior is often not in one place. In the judicial practice exists the parties will users to sell the prosecution, but because of various reasons not to sue the seller's. The parties choose litigation to one's own interests of the court, be without rebuke. But some people use the law case "and the judicial interpretation not perfect local protectionism", in order to win the lawsuit will be the field of the strong pull to the local action, not open convenient ways for judicial justice.

    In view of the complicated situation of these law and practice, "the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark explanation" provisions of article seventh of the joint action of the different tort to mention, the plaintiff may choose to tort which the implementation under the jurisdiction of the people's court; only the where an action a of the defendants, the defendant committed the infringement to the people's court has jurisdiction. This provided that only by joint action of trademark infringement cases, in order to implement the court in the same infringement, summoned defendants to the court to. Or just for a tort litigation, only the implementation of the court in the act, but not to prosecute the implementation in other acts are not accused of infringement. For example, only for the infringement trademark act of litigation, the use of the trademark to the people's court has jurisdiction, the people's court if the parties can not to the sale of the infringing goods to prosecution.

   Correct understanding and application of judicial interpretation of the provisions, should pay attention to:

(1) cases of civil disputes of trademark infringement, in line with the above provisions, no longer depend on the right infringement results to determine the jurisdiction. The provisions of other judicial interpretation under tort results to determine the jurisdiction, is no longer suitable for trademark infringement case.

(2) the judicial interpretation of the provisions of the seized or detained, only refers to the customs, industry and commerce administrative attachment, seizure of infringing goods location. The people's court in the pretrial seizure, seizure of infringing goods place, do not belong to the judicial interpretation of the provisions of the seized or detained. The people's court for Interim Measures in the review of the prosecution before, should first determine their own jurisdiction, shall not be considered by a pre-trial provisional measures can obtain jurisdiction.

(3) the infringing goods stored or detained, the party can sue the implementation of storage, storage, transportation and other behavior, also can sue the commodity dealers, manufacturers, or at the same time the prosecution each behavior.

    Five, the trademark infringement damages

    According to the provisions of the Trademark Law Article fifty-sixth, civil compensation for infringement of the exclusive right to use registered trademarks, calculation method involves compensation, calculation method, the choice of stopping the infringement, the reasonable expenses of statutory damages calculation problems. The legislative and judicial purposes, is defined by the trademark infringement indemnity amount calculation law, the right people get full compensation for the actual loss suffered by infringement of purpose.

    (a) selective calculation amount of Torts

    Trademark law of the fifty-sixth paragraph of the first two calculation methods of the trademark infringement indemnity amount, the amount of compensation for the infringement of the exclusive right to use a trademark infringement, as people from the infringement during the period benefit, or infringement during the period of being infringed due to the infringement of the losses suffered by the. This is according to the applicable laws and regulations in China many years of trial experience and learn from international practice to develop. But the two calculation methods, can be selected, or to order? Practice of Supreme People's Court on the judicial interpretation and judicial practice in the revision of the trademark law, can choose, but also discusses the different points of view. Modification of the trademark law and the copyright law, two provisions on calculating the amount of damages in tort expressions is not the same, the selective problem of the calculation method of compensation was mentioned schedule.

   The judicial committee of the Supreme Court in the discussion of "interpretation" of the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark draft, the provisions of optional method in calculating the amount of compensation to the attention of the trademark law and the copyright law has different. Therefore, "judicial interpretation" thirteenth stipulates the rights of the people by the people's court may request the lawsuit, choose to apply any method for the above two methods, calculation of the amount of compensation. Under normal circumstances, the people's court for the parties to choose, he shall be permitted to. The judicial interpretation of the provisions, the introduction of the principle of Party autonomy. Compensation calculations not only the people's court according to the case shall be selected in the trial, but the parties (here mainly refers to the plaintiff's rights as human) have the right to choose, and the people's court shall generally be selected choice of parties on request. The amount of compensation between the parties other than the two calculation methods of damage calculation method, calculation of the compensation agreement, not in violation of national laws and social public interests and the legitimate rights and interests of others, the people's court shall permit.

    (two) calculation method of compensation for damages against registered trademark

    According to the patent law, copyright law, judicial provisions about how to calculate the loss of rights holders and the infringer profits explained, "the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark explanation" fourteenth, fifteenth of the trademark law the fifty-sixth regulation No. an infringement of the benefits obtained from infringement and the loss calculation made clear, so that the people's court in the trial practice in the specific operation.

    "Provisions on some issues of applicable law in trying civil cases of disputes over trademark interpretation of the Supreme People's court" article fourteenth: "trademark law article fifty-sixth stipulated in the first paragraph of infringing the benefits obtained, can calculate the profits and the goods per unit product according to the sales of the infringing goods; the unit profit of such goods cannot be ascertained, calculated in accordance with the profit of Registered Trademark Commodities unit." The provision of "the unit profit of the goods", refers to the average profit per item; the "registered trademark goods by the unit profit", refers to the right to enjoy the right of registered trademark of each commodity average profit. In practice, some producing fake intentionally concealing evidence, make false statements, no or occult books document, the fake commodities profits cannot be ascertained. Even if identified, fake commodities prices very low, if the price considering the amount of compensation for the rights of the people is not fair. Therefore, "the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark explanation" provisions of article fourteenth in accordance with the profit of Registered Trademark Commodities unit according to the right people commodity profit calculation method, clarifies the previous provisions unclear problems. This is an important measure to strengthen the judicial right of registered trademark protection. Some comrades of the trademark law amended the original Trademark Law of compensation for the "profits" to "benefit" do not understand, in fact the "interest" includes the word "profit" meaning, and its extension is more wide, suitable for more flexible.

    "Provisions on some issues of applicable law in trying civil cases of disputes over trademark interpretation of the Supreme People's Court:" Fifteenth "is the loss of the infringed due to trademark law article fifty-sixth prescribed in the first paragraph, can according to the owner for the right cause the decrease in sales volume of goods or the unit profit sales of the infringing goods and the registered trademark goods product calculation." The provisions of the trademark law, is caused by the infringement loss calculation methods of interpretation. Generally speaking, the infringee loss shall be borne by the burden of proof, proof required due to infringement of commercial sales to reduce the unit profit and goods, then calculates the compensation amount should be. But in practice, because of a certain commodity market demand and other reasons, often also can appear the fact of infringement has occurred but the infringee's sales volume has not decreased, even also showed a rising trend. But after all, causing damage to the rights of the legitimate commercial potential sales market. At the same time, the infringee loss is also reflected in the infringer used by illegal profit registered trademark infringement on human. Therefore, to compute the infringee loss according to identify the sales of the infringing goods and commodity profit, becomes another compensation amount calculation method selection. Some comrades put forward "coordination of the provisions on some issues of applicable law in trying civil cases of trademark disputes the interpretation of" fourteenth and fifteenth of the Supreme People's court for Registered Trademark Commodities unit profit. Fourteenth the provisions of the infringing goods cannot be ascertained in the profit is the unit limits, then apply profit commodity unit; and the fifteenth in the calculation of be infringed by the loss is calculated according to the sales of the infringing goods, can the unit profit directly applicable commodity, not the limit. Two the provisions of judicial interpretation of thought, is the embodiment of the legitimate rights and interests fully, fairly protect registered trademark owner. Since profit reason violations of the commodity unit is not real, and strive to calculate profit registered trademark of commodity units as standard. The result of this calculation, the actual loss is more close to the trademark owner. But when it comes to infringement of the benefits obtained, also should be the tortfeasor's management as the foundation, with its well documented the unit profit of the goods to calculate the amount of compensation more real. Not the unit profit registered trademark goods direct calculation. Once the profits of goods cannot be ascertained, that the use of a registered trademark commodity unit profit calculation, is a presumed benefits of infringement, is not conducive to the infringement and is conducive to the trademark owner. Display a large number of cases in practice, originally used two kinds of compensation amount calculation method results may be inconsistent, even is not consistent. So, according to the different cases, selection of calculation method for the amount of compensation for losses of their own, is one of the essential skills of intellectual property litigation.

    (three) the reasonable expenses for stopping the infringement

    Under normal circumstances, the right to stop the infringing acts must pay a certain fee. These costs as long as reasonable expenses, should belong to the obligee due to loss of tort, shall order the infringing party to give people the right to compensation. But in the past has no clear legal provisions, the people's courts all over the difficulties in the application of the law, action is not uniform.

    The new patent law was modified in 2000, and no compensation for the right to stop the infringing the provisions of the payment of reasonable expenses. The promulgation of the "Supreme People's Court on the trial of patent dispute case applicable legal provisions" summarizes many years of trial experience, on the interpretation of article twenty-second supplementary explanation, "the people's court according to the rights of the request and the specific case, can be the right person for investigation, the reasonable expenses paid to stop the infringement calculation within the amount of compensation scope." Trademark law, copyright law amended in 2001, the provisions of the patent law judicial explanation to legal terms, summarized as "reasonable expenses incurred in halting the infringement". So our country to strengthen and an important measure to improve the damages for infringement of intellectual property rights was promulgated.

    In judicial practice, what kind of spending is to stop the infringement of the reasonable expenses, still not clear and specific. Especially in view of counterfeit trademark right infringement case forensics difficult, obtain evidence and to obtain evidence of expenditure compensation, to effectively protect the rights of people's vital interests and the trademark right. So evidence of expenditure compensation problem highlighted. In order to solve this problem, "the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark explanation" article seventeenth for reasonable expenses meaning further clarified, especially the reasonable cost of rights or the entrusted agent on the infringement investigation, forensics, specified in the scope of reasonable expenses. This convenient right proof and sanctions for violations has significance for the protection of registered trademark rights. "Judicial interpretation" of the provisions of the relevant provisions, is convenient for the lower courts in the trial practice the specific application of the trademark law.

   The people's court in determining the amount of compensation, whether to consider the parties to litigation expenses attorney's fees, laws, regulations and judicial interpretations are not specified, is a controversial issue. TRIPS agreement article forty-fifth (two) items specified by the judicial authorities shall have the authority to order the infringer to pay its expenses to the right people, which may include appropriate attorney's fees. Solemn promise our country joining the WTO, according to TRIPS agreement spirit, "the Supreme People's Court on the law applicable to a number of cases of civil disputes the interpretation of seventeenth trademark" provisions of the second paragraph, the people's court according to the claim of the parties and the specific case, in accordance with the relevant departments of the state can be specified (the original manuscript here "the reasonable attorney fees") into the sum of compensation. Such regulations, on one hand, insisting on the practice of our litigation system and the Supreme People's Court emphasized, cautious about this problem, and the whole litigation system must be coordinated; on the one hand and in conformity with the TRIPS agreement spirit, certainly in the trial of cases, according to the lawsuit and the case may be calculated in the compensation fees the amount, to fulfill the solemn commitment of our people in the WTO. "Second paragraph seventeenth theories" used "in accordance with the provisions of relevant state departments to" stated in the lawyer's fees, but does not use manuscript "appropriate" representation. The judicial committee of the Supreme People's court most members considered that such rules more secure, to avoid the lack of experience case judge not good grasp or discretionary application of width.

    (four) the statutory damages for trademark infringement

Fifty-sixth the provisions of the second paragraph of the trademark law, the infringer has acquired from the interests or the infringed due to the infringement by the losses are difficult to determine, the people's court to give 500000 yuan of the following legal compensation according to the circumstances of the infringement judgment.

Trademark law of the provisions, is established based on summing up the experience in trial by a people's court to solve the, intellectual property infringement damages not calculated problem has important significance. In order to make good use of this regulation, "the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark explanation" article sixteenth of statutory compensation further specific provisions: "gained by infringer interests or the infringed due to the infringement by the losses are difficult to determine, the people's court may according to the request of the parties or in accordance with the provisions of the trademark law authority for fifty-sixth section second to determine the amount of compensation.

The people's court in determining the amount of compensation, the nature, period, the consequences should consider infringement, trademark, trademark license fee amount, the type of trademark licensing, time, scope and stop infringement and other factors to determine reasonable expenses. The parties in accordance with the provisions of the first paragraph of the amount of damages to reach an agreement, he shall be permitted to."

To understand and make good use of "Supreme People's Court on the law applicable to a number of cases of civil disputes the interpretation of provisions of the trademark", should pay attention to the following points:

(1) shall be applicable statutory compensation, are difficult to determine profit and loss in tort infringement case. Through the adoption of evidence to determine the amount of compensation, the non applicability of statutory compensation. To prevent the statutory damages easily applied, resulting in the trademark owner economic loss can not get full compensation.

(2) in achievement situations, the people's court to apply the statutory damages, can according to the request of the parties, can also according to the case in accordance with the terms of reference of.

(3) calculation of statutory compensation, according to the nature of tort, period, consequences, the reputation of trademarks, trademark license fee amount, the type of trademark licensing, time, scope and stop the reasonable expenses for the tort hall and other factors to determine. The so-called comprehensive determination, refers to judge according to the above factors and the case of the comprehensive judgment to determine.

(4) the reasonable expenses to stop the infringing acts including attorney's fees, are identified in the statutory damages range 500000 yuan, but not beyond the scope of.

(5) determine the statutory damages people's court, can apply decision, can also be applicable mediation.