JAW-HWA INTERNATIONAL PATENT & TRADEMARK & LAW OFFICES

The legal threshold of the administrative proceedings related to the Appeal up to the Supreme Administrative Court for a trademark administrative Suit

[ December 2008 ] >Back

Trademark

The legal threshold of the administrative proceedings related to the Appeal up to the Supreme Administrative Court for a trademark administrative Suit

According to a legal judgment in 2008, an Appeal filed up to the Supreme Administrative Court for a trademark Administrative Suit without indicating the reason of the appeal by submitting specific facts which lead to finding that the original judgment is in contravention of the laws and regulations will be rejected by the Supreme Court. We herewith summarize the important points concluded in the said legal judgment:

First of all, the judgment of the similarity of two or more trademarks should take their distinctiveness into account according to how the trademarks are used. The wider and more frequent a trademark is used in commerce in a longer period, the more distinctive a trademark is achieved to be recognized by the consumers. By this way, such kind of trademark will have stronger position to not only exclude other similar ones from using or registration, but also be easier to be deemed that the trademark has extended the business field to the surrounding areas of commodities.

Under the above premise, the judgment of the similarity of two or more trademarks should compare their appearances as a whole as well as referring to the volume of the evidence of the use of those trademarks. The judgment should include all factors comprehensively. When judging the similarity of two trademarks, on one hand, it should not evaluate the meanings, appearances or pronunciation of marks separately, and on the other hand not all factors will carry the same weight but their force should differ case by case.

The appellant who would like to argue against the decision made by the court should provide the convincing arguments specifically indicating the distinction and factors which shall be considered and focused more in the particular case (preferably providing the statistics as a support). If the appellant only argues by using the standard contents/ laws issued by the government authorities in the Appeal without providing any supported evidence, the Supreme Court will not agree that such an Appeal meets the legal threshold of accusing the Administrative Court of misjudgment.

Patent

	The TIPO will regulate the concept of Contributory Infringement into the draft amendment to the Patent Act

	In order to make the draft amendment to the Patent Act as completely as possible, the TIPO invited scholars, experts, and the representatives in the judicial and industrial fields to join a public forum held on October 31, 2008 for discussing the relevant provisions of the patent infringement. Particularly, the topic of Contributory Infringement aroused heated discussions. In consideration of providing the overall protection on patent rights, the TIPO will regulate the concept of the Contributory Infringement into the draft amendment to the Patent Act.

	In the past, a patent was deemed to be infringed under the condition that all claims of the patent were put into practice by the infringer. However, it is more likely that what is infringed is the essential element of the patent although the infringer does not put all of the claims into practice. Under such condition, it would lose the function to protect one’s patent rights if we still pay no attention to such conduct. The purpose of regulating the concept of Contributory Infringement into Patent Act is to provide patentees with some additional protection against those who unfairly take advantage of their inventions. Therefore, many countries, such as the United States, Japan, South Korea and the countries in the European Union, have adopted the concept of Contributory Infringement and have regulated it in their Patent Laws when there is a high possibility for an infringer to prepare or help a direct patent infringement.

	As the number of patent applications has increased as high as 65.90% in the past 10 years and is continuing growing in Taiwan, it is very important to strengthen our patent protection by incorporating Contributory Infringement in the draft amendment to the Patent Law in Taiwan.

	(Source: The TIPO’s Press Release published on November 13, 2008)

The copyright issues about sharing other people's music, articles, movies or works in the blog

It is legal to share works created by oneself, such as gourmet reviews, traveling diaries, and photos on one's own blog. However, without getting permission, to share or use copyrighted works created by others on one's own blog is not permitted under copyright law. For example, posting articles and news reports written by others, using music created by others as a background music, or streaming content of copyrighted TV and movies, will result in violations of copyright law, as it is illegal to reproduce, publicly transmit copyrighted works without the express consent of the copyright holders.

The following examples of use of other’s work in the blog may be able to claim fair use without constituting copyright infringement:

1.	Using one’s statement about the current affairs posted on the Internet if the writer does not prohibit his/her statement to be republished or be put into public transmission.

2.	Referring to other’s work within a reasonable scope in order to create one’s own work and further sharing such work in his/her blog.

3.	Adopting the work owned by the government institutions and publishing the same in the Internet within a reasonable scope.

4.	Posting the public speeches or public statements relating to political, religious, judicial, administrative affairs in his/her blog.

5.	Introducing and doing a simple summary of other people’s work in the blog and offering a link to the original text/ source, if such a summary does not replace the original article and the work.

(Source: The TIPO’s Newsletters No.28 issued on October 5, 2008)

Other

Year 2009 National Holidays in Taiwan, R.O.C.

Date		Festival and Holiday Name
Jan. 01~ Jan. 04	Thur. ~ Sun.	Founding Anniversary
Jan. 24~ Feb. 01	Sat.~ Sun.	Lunar New Year’s Day
Feb. 28	Sat.	Peace Memorial Day
Apr. 04	Sat.	Tomb-sweeping Festival
May 28~ May 31	Thur.~ Sun.	Dragon Boat Festival
Oct. 03	Sat.	Mid-autumn Festival
Oct. 10	Sat.	National Day

Please note that:

1.	Our offices will be closed on every Saturday and Sunday.

2.	If you should have any order instruction or any instruction related to official due dates within the above holidays, please kindly contact us in advance as soon as possible.

3.	We would greatly appreciate if you would forward any new Schedule of Charges or Filing Forms to us as soon as they are issued or updated.