On August 25, Quality Brands Protection Committee of China Association of Enterprises with Foreign Investment (QBPC) and Shanghai University Law College/Intellectual Property College co-organized a practical seminar on Punitive Damages of Intellectual Property in Shanghai. QBPC Legal Committee Chair Michael Yu hosted the seminar.
QBPC Legal Committee Chair Michael YU
LIU Yonggang, Emerson China's Head of intellectual property, gave an opening speech. With his own experience, he reviewed the history of civil litigations by IP owners in China, He implied that the amount of compensation had been continuously increased with the modifications on the mechanism of damage. Especially the punitive damage was more effective in deterring infringers and raising the cost of infringement.
LIU Yonggang, Emerson China's head of intellectual property
SU Heqin, partner of Shanghai HuiYe Law Firm, shared his views on the calculation of punitive damages base and the collection of evidence. He first sorted out and interpreted relevant laws and judicial interpretations such as The Supreme People's Court's Interpretation on the Application of Punitive Damages in the Trial of Civil Cases of Infringement of Intellectual Property Rights, and the Supreme People's Court’s Provisions on Several Issues Concerning Evidence in Civil Litigation of Intellectual Property Rights. Later, Attorney Su introduced four base calculation methods, including actual losses, infringement income (operating profit/sales profit), multiples of rights licensing fees, and discretionary bases. Finally, Attorney Su elaborated on the evidence and collection of base calculations.
Partner of Shanghai HuiYe Law Firm SU Heqin
CAO Jie, Partner of Zhongshenzhonghuan accounting firm, shared the profit calculation and audit practice, which included three parts. The first part was about the types of reports that the accounting firm could produce during the base calculation, including special audit reports and reports on the implementation of agreed procedures on financial information. The second part was the audit of actual losses and infringement profits. The audit object and scope of actual losses were mainly the financial information of the infringed party, and the audit object and scope of the infringement profits were mainly the financial information of the infringing party. In the third part, he explained profit calculation.
Partner of Zhongshenzhonghuan accounting firm CAO Jie
Finally, Customs Committee vice-chair Angela Shi gave a speech on how right owners could provide evidence in IP litigations. Angela mainly introduced three types of evidence and how to obtain sufficient and effective evidence. The first type was evidence of rights, including the qualifications of the litigation subject, letter of authorization and proof of intellectual property ownership. The second type was evidence of the defendant’s malicious infringement, including evidence of the defendant’s malicious imitations in the brand’s place of origin, corporate name, and online publicity, notarization of the web page misleading consumers, and market research reports. The third type was evidence related to damages, which could be obtained through various channels such as libraries, newspapers, magazines, and news reports. In addition, Angela also recommended that in-house lawyers could integrate internal and external resources to obtain sufficient and effective evidence, e.g. strengthening cooperation with external lawyers and business departments of the company.
QBPC Customs Committee Vice-chair Angela Shi
In the panel discussion hosted by Professor Xiuting Yuan of Tongji University, the participants actively exchanged with the guest speakers.