Better IPR protection to boost innovation

By:China Daily
update:March 23,2018

China's Trademark Law, revised in 2013, introduced a punitive damages system for intellectual property. According to Article 63 of the Trademark Law, if there is malicious infringement and an existence of serious circumstances, the amount of compensation could be one to three times of the actual infringement loss or the profit that an IPR violator gains. But the law doesn't say how to determine "malicious" or "serious circumstances". Since this stipulation can hardly be used to punish IPR violators, rarely do we see cases that conform to the punitive damages system for IPR infringement in legal practice.

To strengthen the compensation, punishment and deterrence effect of the punitive damages system for IPR infringement, help IPR holders to receive appropriate compensation for the loss they suffer and increase the penalty for infringing IPR－in order to curb such violations－the authorities should make more efforts on three fronts.

First, they should expedite the revision process of the Patent Law and Copyright Law, and set up a comprehensive punitive damages system for IPR infringement, and more clearly explain the legal conditions for seeking punitive damages for IPR infringements.

Second, the system to furnish evidence should be improved to reduce the IPR holders' burden of proof and put most of the onus on the IPR violators to prove their innocence in an IPR case.

And third, the authorities should accelerate the establishment of an intellectual property credit system, and include the IPR violators' behaviors in the corporate and individual credit system. They should also establish a joint punishment mechanism to prevent IPR infringements.

The author teaches at the School of International Law, Southwest University of Political Science& Law.

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