The Measure of Damages for Infringement of Intellectual Property Rights: the Nature of “Right holder’s choice of claims” in Civil Procedure

• Main Authors: Shiu-Chung Huang, 黃秀忠
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/36201786676123465572

碩士 === 東吳大學 === 法律學系 === 99 === Abstract When copyright , trademark and patent are infringed, the damage relief is awarded against an infringer under section 88 of the Copyright Act, section 63 of the Trademark Law and Patent Law Article 85. The relief is based on the principle of "damages" and "compensatory", however, its substance is out of "compensatory" principle, such as the infringer’s profits or any benefit received from the infringement. Other examples are legal compensation or multiple legal compensation for copyright law and trademark law, and punitive damages for Patent Law, etc. All of them are against to the principle – compensatory. What is the legal basis? Besides, is the damage relief regulation of Trademark Law and Patent Low of the compensation impairment appropriate? Should the change go in "the loss profits" category even though the commercial reputation (goodwill) infringement in general is not identified as property damage, but by its nature the damage of "tomorrow’s business?" Copyright, trademark, patent and other intellectual property rights, exclusive of the creation of technical ideas, is abstract, intangible intellectual property rights. When it is infringed, it does not necessarily result in visible. Based on the traditional regulations, patent owners must prove their damages against the infringer but, they may not have evidence to prove the loss. Does the concept of "damage" is appropriate to apply for the infringement damages for the of intellectual property rights? This article tries to compare the legislation of the United States and account the damage relief by economic analysis of law and litigant procedure safeguard. First, the definition of "damage" is to the meaning of intellectual property rights, and it is enough for right holder prove the existence of the rights being infringed. To enhance the possibility of right holder to forecast the referee result, he can make decision to bring a prosecution or select alternative dispute resolution. By considering the abolition of damages and multiple provisions for compensation, the reasonable royalty system of the United States, supplemented by punitive damages to deter potential infringers, should be fully introduced. Procedures based on client protection and the maintenance of the whole system of legal norms should be defined as the profits of the infringer of the special provisions of unjust enrichment; in court we should guarantee the plaintiff and defendant sufficient opportunity to express their views.