商標侵害損害賠償之計算: 以合理權利金、侵害所得利益、法定賠償額為中心

Translated title of the contribution: The Methods of Calculating Trademark Damages: Focusing on Reasonable Royalty, Accounting of Profits, and Statutory Damages

Research output: Contribution to journalArticlepeer-review

Abstract

Article 71 of the Trademark Law lists several ways of calculating damages. This article refers to Buchanan and Tullock’s explanation of the Edgeworth box, Nash’s equilibrium concept, and Schelling’s focal point theory to explain several ways of calculating trademark damages. The reasonable royalty is often constructed by using the hypothetical negotiation scenario, which in turn can be understood by referring to Nash equilibrium. An established royalty is often used as a focal point for calculating a reasonable royalty. An accounting of the infringer’s profits is to transfer to the plaintiff the surplus caused by the incident of infringement. However, whether to transfer all of the infringer’s profits to the plaintiff is to be determined by a focal point—the defendant’s willfulness. The use of statutory damages in practice tends to be an accounting of the infringer’s profits. These methods of calculating damages can be considered as examples and further explications of the Coase theorem.
Translated title of the contribution The Methods of Calculating Trademark Damages: Focusing on Reasonable Royalty, Accounting of Profits, and Statutory Damages
Original languageChinese (Traditional)
Pages (from-to)133-157
Number of pages25
Journal月旦法學雜誌
Issue number274
DOIs
StatePublished - Mar 2018

Keywords

  • Trademark Infringement
  • Damages
  • Nash Equilibrium
  • James M. Buchanan and Gordon Tullock
  • Thomas C. Schelling
  • Focal Point (Schelling Point)
  • Reasonable Royalty
  • Infringer’s Profits
  • Statutory Damages
  • Coase Theorem

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