Taiwan Trademark 101 Series, What is a Trademark?
Written by: James Y. Chang
1. What Does a Trademark Do
A trademark generally protects brand names and logos used for goods and services. It is generally a word, phrase, symbol, device, or even color, shape or packaging of goods, motion, hologram, sound, or a combination. The trademark is mainly used by a person in the course of business or trade to identify and distinguish the source of goods or services of one undertaking from those of another.
2. Trademark Distinctiveness
The main function of a trademark is to identify the source of goods or services. If a sign cannot identify and distinguish goods or services, it does not have the trademark function and the application of the registration can’t be approved. Distinctiveness is a must for the trademark registration.
3. Legislation Governing Trademarks
In Taiwan, the law that govern registration of trademarks is the Trademark Act. There are also administrative rules formulated by Taiwan Intellectual Property Office (TIPO), such as the Enforcement Rules of the Trademark Act, the Standards of Trademark Fees, Implementation Regulations for Customs to Detain Articles Infringing the Rights in the Trademark, that play important roles for the regulations of the Trademark in Taiwan.
4. Is It Mandatory to Register a Trademark?
It is not mandatory to register a trademark in Taiwan. You can use your trademark in the course of trade without any registration. However, your trademark will not be protected by the laws because it is not registered. If it were not registered, there will be a risk that other peoples are using your trademarks and you will be hard to assert legal rights against the infringers. However, if you just want to use an unregistered trademark, you are advised to go to TIPO database and find out if it is already registered or is still undergoing application process. This will help you to prevent from unknowingly infringing the trademarks rights of registered proprietors.
5. Advantages to Registering a Trademark
The registered trademark proprietor is entitled to have the statutory exclusivity rights during the valid period of time in Taiwan area. As the proprietor of a registered trademark, you will:
have the exclusive right to use your registered trademark for the goods or services specified in the registration;
have the right to authorize use by other people of your registered trademark for the goods or services specified in the registration;
have the right to sell the registered trademark or use it as a property to establish a pledge;
be able to stop people from using your trademark for the goods or services which might be covered by your trademark registration and causing confusion;
be able to request Customs to prevent the importation or exportation of goods that infringe your registered trademark; and
may take a legal action against infringers that use your registered trademark as their own on identical or similar goods or services without your consent.
The registered trademark enables you to protect your market share or profits better by preventing people from counterfeiting it.
 Examination Guidelines on Distinctiveness of Trademarks, Enacted and promulgated on December 31, 2008 by the order of the MOEA, enforced on January 1, 2009. Amended and promulgated on April 20, 2012 by the order of the MOEA, enforced on July 1, 2012, p 4
 Ibid., UNDERSTANDING TRADEMARKS, p 3