Monday, November 8, 2021

Two Recent Articles on Punitive Damages in China

1.  Yurong Zhang has published A study on punitive damages for the infringement of intellectual property rights in China, 43 EIPR 433-39 (2021).  Here is the abstract:


The punitive damages system plays a vital role in compensating intellectual property (IP) holders for damages, fighting against malicious infringement and promoting innovation. To reduce the increasing infringement of intellectual property rights (IPRs), China has introduced punitive damages in IP legal system since 2013. However, the conditions for the application of punitive damages in judicial practice are still very controversial, including how to identify "malicious" or "intentional" infringement and "serious circumstances" as well as the calculation of damages. This article explains the background of China’s punitive damages system for the infringement of IPRs, focuses on the judicial application of punitive damages in the field of trademark law and analyses important disputes. The introduction of punitive damages conforms to the trend of further strengthening IPRs protection in China and is beneficial to technological progress and innovation.


As the new abstract notes, the article focuses on punitive damages in trademarks, though it does mention the availability of punitive (up to quintuple) damages in Chinese patent and copyright law as well.


2. Yanang Zhang has published Punitive damages in trademark infringement disputes in China: challenges and prospects in 11 Queen Mary Journal of Intellectual Property 362-85 (2021).  Here is the 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.

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