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Legislation Update: The Legislative Yuan Passed the Amendments to the Trademark Law

Submitted By: Formosan Brothers

Taipei, Taiwain

The Legislative Yuan passed the amendments to the Trademark Law (hereinafter referred to as “the Amendments”) on May 31, 2011.

According to the Article 18 of the Amendments, some atypical trademarks not protected by the Trademark Law prior to the Amendments, such as animation, hologram (e.g. laser chart), and sound, etc. can be reg-istered as trademarks through the registration process in the future. In other words, the Article 18 of the Amendments amplifies the scope of trademark registration largely.

The old Trademark Law provides that damages may be claimed in an amount equivalent to 500 to 1,500 times of the unit retail price of the in-fringing goods. However, under the old Trademark Law, even if the severity of infringement act is slight, an alleged infringer can nevertheless be claimed to pay in an amount of 500 times of the unit retail price of the infringing goods. To avoid such unreasonableness, the Amendments delete the min-imum limit of damages award (ie. the amount of 500 times of the unit retail price of the infringing goods) while keep the maximum limit of damages award and grant court discretion to adjudicate case by case under cir-cumstances.

In addition, the Amendments specifies the use of trademark, that is, trademark infringement shall be deemed to have occurred where an alleged mark that is identical or substantially similar to a well-known trademark and hence is likely to confuse the relevant public or likely to dilute the dis-tinctiveness or reputation of the said well-known trademark. In sum, the Amendments are more consistent with global norms through strengthening the protection of well-known trademarks and specifying the type of trade-mark licensing.

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