(1) Where a claim for damage is filed pursuant to Article 109, when a person who infringed upon the right transferred the products that constituted the infringement to a third party, the aggregate of the following amounts may be determined as the amount of loss that a trademark right holder or exclusive licensee has sustained: <Amended on Dec. 22, 2020>
1. The amount calculated by multiplying the quantity not exceeding the quantity of products that the trademark right holder or exclusive licensee could have produced, minus the quantity of products actually sold among the quantity of the transferred products (the quantity calculated by subtracting the quantity of products that the trademark right holder or exclusive licensee could not sell due to any cause or event, other than the infringement, from the quantity of the transferred products, if such cause or event, in addition to the infringement, prevented the trademark right holder or exclusive licensee from selling the products) by the profit per unit of the products that the trademark right holder or the exclusive licensee could have sold if not for the infringement;
2. The amount that he or she can reasonably receive for use of the trademark eligible for trademark registration (the quantity calculated by subtracting the relevant quantity, if it is not recognized that the trademark right holder or exclusive licensee was able to establish an exclusive license, a non-exclusive license as to the trademark right of the trademark right holder or to grant a non-exclusive license as to the exclusive license of the exclusive licensee), where there is any quantity exceeding the quantity of products that the trademark right holder or exclusive licensee could have produced, minus the quantity of products actually sold among the quantity of the transferred products or quantity of products that the trademark right holder or exclusive licensee could not sold due to any cause or event, other than the infringement.
(12) Deleted. <Feb. 22, 2020>
(3) Where a person who has committed infringement gains profits attributable to the infringement when a trademark right holder or an exclusive licensee claims damages under Article 109, such profits shall be estimated as the amount of damages the trademark right holder or the exclusive licensee has incurred.
(4) Where a trademark right holder or an exclusive licensee claims damages under Article 109, he or she may claim damages by estimating an amount equivalent to that he or she can reasonably receive from the use of the registered trademark as the amount of damages he or she has incurred. <Amended on Oct. 20, 2020>
(5) Notwithstanding paragraph (4), where an amount of damages exceeds an amount prescribed in the same paragraph, a trademark right holder or an exclusive licensee may also claim damages on the excess amount. In such cases, where the person has not infringed on a trademark right or an exclusive license willfully or by gross negligence, the court may take such fact into consideration when calculating the amount of damages.
(6) Where the court recognizes that a trademark right holder or an exclusive licensee has incurred damages in a lawsuit regarding the infringement on a trademark right or exclusive license, but it is difficult for the court to verify the facts necessary to prove the amount of such damages in the nature of the truth, notwithstanding paragraphs (1) through (5), the court may recognize a reasonable amount of damages on the basis of the meaning of all pleadings and the result of the examination of evidence.
(7) The court may determine the amount of damages within the scope not exceeding three times the amount recognized as damage under paragraphs (1) through (6) to be paid by a person who has intentionally infringed on a trademark identical or similar to the registered trademark of a trademark right holder or an exclusive licensee by using the trademark on goods identical or similar to the designated goods, notwithstanding Article 109. <Newly Inserted on Oct. 20, 2020>
(8) In determining the amount of damages under paragraph (7), the court shall take the following matters into consideration: <Newly Inserted on Oct. 20, 2020>
1. The degree of dilution to the distinctiveness or reputation of the relevant trademark due to the infringement;
2. Whether the infringement has been willful or the level of awareness of the risk of causing damage;
3. The severity of the damage inflicted upon a trademark right holder or an exclusive licensee by the infringement;
4. The economic benefits obtained by the infringer through the infringement;
5. The period, the number, etc. of the infringement;
6. The fines imposed for the infringement;
7. The financial status of the infringer;
8. The relative degree of efforts made by the infringer to redress damage.