Damage CNY100K Granted Despite Infringing Profit Only CNY4K

Xiaoming Liu of Chofn IP

In a trademark infringement civil lawsuit we represented recently, the court awarded more than CNY100K to the right owner, including CNY50K as damages and more than CNY50K as reasonable legal expenses. 

The right owner tried to firstly solve this case through criminal procedure as the infringing scenario seemed serious. The right owner conducted initial investigation, collected some clues, and then, reported to the local police. However, after the police and the local procuratorate conducted further investigation into the case, only around CNY4K was confirmed as the infringer’s illegal profits due to the strict standard of proof in criminal procedure. As CNY4K is lower than the criminal threshold, the procuratorate decided to stop the criminal prosecution.

The right owner then initiated a civil lawsuit to seek compensation. In the complaint, we argued that the damages to be awarded in civil procedure should not be based on the CNY4K determined in the criminal procedure as their illegal profits are very likely to be far more than CNY4K. We elaborated on the different standards of proof in criminal and civil procedures. In criminal procedure, as the case ruling is about whether to deprive the criminal suspect’s life or freedom, the police and the procuratorate is very prudent and they adopt “beyond all reasonable doubt” as the standard of proof when taking in some evidence as the basis to charge the suspect. In contrast, in civil procedure, as the outcome of the case has nothing to do with deprivation of life or freedom, but only relates to monetary damages, the standard of proof adopted is “high probability” when taking in evidence.

Our argument was adopted by the court in the civil procedure. In the ruling, the court stated “although the procuratorate finally determined that the amount of illegal profit from the defendant's infringement, including infringement of other trademarks, was only more than CNY4K, due to the extremely strict standard of proof in criminal cases, the amount of civil compensation should not be determined only on the basis of the amount determined in criminal cases..., the court granted a damage of CNY50,000 to the right owner and CNY55,470 as the reasonable legal expenses”.

To sum up, some evidence which is precluded from criminal procedure is likely to be acceptable in civil procedure. This case is a typical example to demonstrate the different standards of proof in criminal and civil procedures.

Damage CNY100K Granted Despite Infringing Profit Only CNY4K-20210202.pdf


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