最高人民法院关于审理商标民事纠纷案件适用法律若干问题的解释 Several Questions on the Application of Law in Trial of Trademark Civi

e products using the registered trademark.

　　Article 16　Where it is difficult to calculate both the benefit gained by the infringer because of the infringement or the loss suffered by the rights holder because of the infringement， the people's court can， in accordance with the parties' request or on an ex officio basis， apply the provisions of the second paragraph of Article 56 of the Trademark Law in order to determine the measure of damages.

　　When a people's court is determining the measure of damages， it should make an overall determination having considered factors such as the nature， the period and the consequences of the infringement， the reputation of the trademark， the amount of trademark licensing royalties， the types， periods and scope of trademark licences for the mark， the reasonable expenses incurred in stopping the infringement， etc.

　　Where the parties reach an agreement on the measure of damages in accordance with the first paragraph of this Article， this should be permitted.

　　Article 17　The “reasonable expenses incurred in stopping the infringement” referred to in the first paragraph of Article 56 of the Trademark Law include reasonable expenses of the rights holder or an appointed agent in investigating and collecting evidence regarding the infringing act.

　　In accordance with a party's statement of claim or the specific facts of the case， a people's court can include lawyers' fees that comply with the stipulations of the relevant State departments within the calculation of the scope of compensation.

　　Article 18　The statute of limitation for bringing a suit for the infringement of a registered trademark is two years， starting from the date that the trademark registrant or a materially interested party knew or should have known about the act of infringement. Where a trademark registrant or a materially interested party brings a suit after more than two years， if the infringing act is still continuing at the time the suit is brought and the exclusive rights to use the registered trademark are still in the period of validity， then the people's

court should issue a judgment ordering the defendant to stop the infringing act. The measure of damages for the infringement should be calculated by reckoning back two years from the date when the rights holder brought the suit before the people's court.

　　Article 19　Where a trademark licensing contract has not been recorded， this will not affect its effectiveness， unless otherwise agreed by the parties.

　　A trademark licensing contract that has not been recorded with the Trademark Office may not be used to oppose third parties acting in good faith.

　　Article 20　The assignment of registered trademarks shall not affect the effectiveness of trademark licensing contracts that had already entered into effect before the assignment， unless the trademark licensing contracts contain provisions to the contrary.

　　Article 21　Where a people's court is trying a dispute involving the infringement of exclusive rights to use a registered trademark， in accordance with the provisions of Article 134 of the Civil Law General Principles and Article 53 of the Trademark Law and the specific circumstances of the case， the court can issue a judgment ordering the infringer to bear such civil liability as stopping the infringement， removing obstructions， eliminating dangers， compensating loss， eliminating the effect of the infringement， etc. It can also issue a decision for such civil sanctions as imposing fines and/or confiscating the infringing goods， the forged trademark representations and property such as materials， tools and equipment， etc.， specially used to manufacture the infringing products. The amount of the fines can be determined by reference to the relevant provisions under the PRC Trademark Law Implementing Regulations.

　　Where an administrative department for industry and commerce has already imposed an administrative penalty in respect of the same act of infringing the exclusive rights to use a registered trademark， the people's court shall not impose any additional civil sanction.

　　Article 22　Where a people's court is trying a trademark dispute case， it may， at the request of a party and in accordance with the actual circumstances of the case， make a determination in accordance with law as to whether the registered trademark in question is well-known.

　　Determination of a trademark as well-known should be carried out in accordance with the provisions of Article 14 of the Trademark Law.

　　Where a party requests protection in respect of a trademark that has been previously determined as a well-known trademark by administrative authorities or a people's court and the other party does not dispute the mark in question being well-known， the court will not carry out any further examination. If the other party does dispute the trademark being well-known， the people's court shall carry out an examination in accordance with Article 14 of the Trademark Law.

　　Article 23　The provisions under the Interpretation applying to product trademarks also apply to service trademarks.

　　Article 24　Where previous relevant provisions are inconsistent with the Interpretation， the Interpretation shall apply

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