Taiwan Trademark Law Revised

The new Amendments to the Taiwan Trademark Law were promulgated by the President, and will take effect on November 28, 2003. The Law aims to exceed TRIPs standards, and provide trademark protection consistent with the level provided by the most advanced nations. The new Amendments represent the seventh time the Trademark Law has been amended since 1980. Among the more significant revisions:

1. Sound marks and 3D shapes may be registered for protection;
2. Multi-class applications will be available, reducing costs to trademark owners;
3. Lifting the requirements that a trademark must be used to identify the applicant's business, and that the applicant must have commenced, or intend to use, the mark;
4. The definition of "trademark use" is amended to include E-commerce and Internet use;
5. Trademarks will be registered upon approval, and oppositions will be accepted after registration;
6. The Associate Trademark system is abolished, and Defensive Trademarks will be gradually abolished;
7. Substantive examination for trademark renewals will be abolished;
8. Geographical indications may be registered as certification marks.

Taiwan Copyright Law Revised

The Legislative Yuan passed Amendments to the Copyright Law, and they will take effect after promulgation by the President. The Amendments aim to further strengthen legal protection for copyright owners and impose more severe punishment on copyright infringements, and are the eighth time the Copyright Law has been amended since 1980.

There are 39 articles amended and 14 new articles added to the Copyright Law. The Amendments introduce the concept of public transmission on the Internet to the current law and specifically provide that transmission on the Internet is “publication” of a work. Fair use provisions remain unchanged. The Amendments recognize the copyright of a recording work and provide that the author of a recording work has the right to obtain the compensation from a performer who performs the work publicly. The revised law specifies that a performer must pay a royalty to the composer, author, and original performer of a work, if any. In theory, there could be many disputes among performers as to whether a given performance is a copy of another performer’s prior performance, or a new interpretation of the original work.

The Amendments clarify that an exclusive licensee may act as the copyright owner within the authorized scope, including conducting enforcement litigation activities in its own name. Under the amended Copyright Law, a performer has an exclusive right to rent out recordings of its performance. It is implied that the performer has first obtained a license from the creator of a work prior to performing.

Under the Amended Copyright Law, infringement includes publicly display or possession of items with knowledge that such items infringe other persons’ copyrights. In addition, the Amendments strive to increase deterrence by providing more specific and severe criminal punishments for copyright infringement. The maximum penalty for unauthorized reproduction will increase from NT$300,000 (approximately US$10,000) to NT$2million (approximately US$60,000). Illegal reproduction of optical disks will be subject to a penalty of up to NT$5million. A repetitive violator will be subject to imprisonment of up to seven years and a penalty of up to NT$8million.

Taiwan Revised “Regulations on Promoting Industry”>

The amendments to the Regulations provide many tax benefits to encourage commercial investments to selected industries.

According to the Regulations, investments in some fields, including the following will enjoy business income tax deductions or refund benefits: automated equipment, resource circulation, pollution control, new energy, and recycling of industrial water, reduction of greenhouse gases, equipment streamlining the usage of energy, Internet and television functions, enterprise resources planning, communication and telecommunication products, electrical equipment, video communication equipment, digital products and other hardware, software and techniques for streamlining digital information of an enterprise.

Investments in poor and rural areas will receive exemption from business income tax for up to five years. Shareholders of initial stock in a company in an emerging, important and strategic industry that can generate substantial benefits for national economic development, but are at high risk and in great need of support, will pay be able to deduct part of the purchase price of the stock from regular income if they hold the stock for more than 3 years. There will be a five-year carry forward.

Furthermore, in order to promote manufacturing and related technologies, newly established scientific companies or capital increases in these companies from January 1, 2002 to December 30, 2003 could exempt from business tax.

Revised “Civil Procedure Code” Announced

Taiwan issued a new Civil Procedure Code, adding 198 articles, and deleting 6. This is the biggest revision in the past 10 years.

The revisions involve as many as 23 fields covering almost all important aspects of civil procedure. The new code loosens requirements to file a lawsuit, particularly allowing an organization which is not a juristic person to bring and answer a lawsuit. This means that clubs and other unofficial groups can have legal standing under the new Code. The Codes restrict litigation agents’ scope. The court fees regulation applying to general cases has been revised from the original fixed 1% of the claim to a floating percentage of the claim, depending on the amount or value of the claim. The percentage of the court fee will be higher for a large claim than a small claim.

The Codes also strengthen the function of settlements. A Court in the case may persuade parties to settle the case at any time during litigation, and a third party could join the settlement later even if he is not a party to the case. The Court can help the parties to enter a detailed settlement agreement under the principle of equity within the primary agreement between the parties. A third party has rights to cancel a valid judgment on the ground that his absence in the case could lead to material change of the case results or bring incur great harm to his rights. The new Codes enhance the enforcement of provisional remedies.

Amendment to the Code of Criminal Procedure promulgated

The amendment of the Code of Criminal Procedure adds or revises 124 articles, and deleted 6 articles.

The Amendment requires tape recording of the trial, and video recording under certain circumstances. The parties to the litigation may request the court to correct the trial record to conform to such a recording. The Amendment strengthens the protection of the right of the defendant; clearly specifies that the defendant should be deemed not guilty before he or she is convicted. It also details the value of evidence, particularly defendant admissions or representations in or out of court. Detailed regulations regarding cross-examination are also added in the Amendment. In order to reduce the court workloads, a simplified procedure will be used when a defendant pleads guilty to minor crimes, unless the parties demand the formal procedure.