- 學位論文
侵害著名商標損害賠償計算準則之比較研究
A Comparative Study on the Damage Assessment of Well-Known Trademark Infringement
摘要
商標乃一對世排他之專有使用權，尤以著名商標之經營係經商標權人投入長期資金與心血，並於市場上享有高度商譽之價值；是以當著名商標遭受侵害時，如何認定與計算其損害賠償實屬訴訟爭辯之重點。又在傳統上商標侵權之損害賠償的計算方法主要分為具體損害說、差額說、侵害所得利益說、銷售額說及法定賠償說、擬制授權金說，及法定酌減說等，此在實務判決中多以法定賠償說作為計算準則；然於民國101年所施行之新法，因刪除法定賠償說中損害賠償數額倍數之下限，迄今各法院間並無相同審酌因素解讀而判定之情況下，其之適用存有諸多疑義。 本文首先探討我國法規範於新舊法上損害賠償計算標準之差異，輔以實務上舉證問題加以說明；另藉由美國、中國大陸及日本之法制與實務案例，比較各國案例中之審酌因素及判斷原則，以檢視我國新法損害賠償於實務上計算方式之妥適性。在分析各國現行理論與實務運作情況後，本文試圖提出淺見及修正方向，希冀能作為侵害著名商標於損害賠償計算方式之參考。
並列摘要
Trademark is a kind of exclusive right. What is being noted is that the management of a well-known trademark requires the trademark right holder to put in long-term capital and efforts, and makes itself own value of business reputation in the market. Therefore, when the rights of a well-known trademark are infringed, the major points of dispute in a lawsuit will be how to recognize and calculate damages. Traditionally speaking, the calculation methods of damages in the trademark infringement consist of infringer’s profits, losses suffered by the owner, the maximum number of 1500 times of the unit retail price, and possible royalties; among these, the maximum number of 1500 times of the unit retail price is the major calculation principle in the judicial practice. However, the amended law enforced in 2012 has deleted the lowest limit of multiplying amount in the damages of the maximum number of 1500 times of the unit retail price. Since there are no identical factors of discretion to be interpreted and to make a verdict accordingly, its application still comes with plenty of doubts. In the beginning, this thesis explores the differences of the calculation standard in damages between the past law and the amended law, both of which are ruled in Taiwan; meanwhile, the burden of proof in practice is also supplemented to explain furthermore. In addition, the thesis reviews the appropriateness of the calculation standard in damages with the amended law in practice in Taiwan, by comparing the judging factors and principles from the different cases of the legal system and the practical cases in the United States, China and Japan. After analyzing the current theories and practical cases from these countries, this thesis attempts to provide some suggestions and the direction of amending, and also hopes that it will be a good reference to the calculation standard of damages when a well-known trademark is infringed.