商標 Trademark

“Trademark” is a symbol used to indicate and distinguish the source of goods / services. Therefore, a trademark must carry the function to enable the relevant purchaser to recognize it as the source of goods / services and identify different sources of goods / services. A common name or a direct and obvious description as a trademark does not carry the function to indicate and distinguish the source. With the vigor and diversification of economic activities on marketing, the styles of trademarks, aside from traditional words, graphics, and signs, it would likely expand to colors, three-dimensional shapes, sounds, dynamics, holograms, and even types of smell, touch, and taste to possibly become the trademarks so long as they are functioned to distinguish the source of supply.

According to Article 2 of the Trademark Law: ” Any person who wishes to obtain the rights of trademark, certification mark, collective membership mark, or collective trademark, shall file an application in accordance with this Law. Therefore, the subject of the rights protected by trademark registration is trademark rights, certification marks, collective trademark, collective membership trademark of four kinds, they are illustrated as follows:

(1) Trademark: The main function of a mark is used to indicate the origin of goods or services and to distinguish them from others’ goods or services during the course of business or transactions.

(2) Certification mark: refers a certification mark means any sign that is used by the proprietor of the certification mark to certify a particular quality, accuracy, material, mode of manufacture, geographical origin or other matters of another person’s goods or services and can be used to distinguish the goods or services from those that are not certified. Only a legal person, a group or a government agency which is capable of certifying another person’s goods or services shall be eligible to apply for registration of a certification mark. (§80-1, 81-1 of Trademark Law). The certification mark is different from the trademark in that the certification mark is not used by the certification mark right holder, but by a person with the consent of the certification mark right holder because his / her goods or services comply with the certification mark use specification. Only when the conditions are set can the certification mark be used.

(3) Collective membership trademark: refers to any sign that is used by an association, society or any other group existing as a legal person to identify the membership of its members and to distinguish its members from non-members. (§85 of Trademark Law). Collective membership trademarks :are not used for goods or services in commerce or transactions, but are used to recognize the membership of a specific group, in order to inform the public that the user of the Collective membership trademark: (that is, a group member) is related to the group. Once the membership trademark is approved for registration, group members can use the mark to recognize their membership in accordance with the conditions set out in specification of the Collective membership trademark.

(4) Collective trademark: refers to a collective trademark means any sign that is used by an association, society or any other group existing as a legal person to indicate the goods or services provided by the members and to distinguish the goods or services provided by the members from those by non-members.(§88-1 of Trademark Law) . Collective trademarks are provided for use by group members only. As a mark of goods or services derived from a specific group member, additional requirements may be met for the quality, geographical origin, or other characteristics of the goods or services. Once a collective trademark is approved for registration, group members can use the collective trademark in accordance with the conditions set out in the specification of collective trademark.

1. Who can apply?

(1) Domestic and foreign natural persons, legal persons or other commercial  ntities (trade names, shop name) who have used trademarks to depict their business / service needs can apply for registration in the name of individuals, legal persons or business entities.

(2) However, there are other qualification restrictions for applying for collective membership, collective trademarks, and certification marks:

Collective membership trademarks or collective trademark::

(i) Because they are provided for members to use, applicants should be limited to associations and legal persons composed of members such as guilds, associations, or other groups with legal personality.

(ii) Certification mark: Applicants are limited to legal persons, groups or government agencies with the ability to prove the goods / services of others.

  1. Who should apply?

(1) Corporate or individuals who want to establish their own brand image and strengthen the market.

(2) Those who want to avoid the pre-registration of brands that have been established but not yet registered.

(3) Those who want to use the trademark without any doubt about infringement.

(4) Those who want to enter major channels and shopping malls to market, their goods / services must first register trademarks.

(5) Those who want to build market awareness and gain consumer trust.

(6) To sustainably manage the brand and pass it on to future generations.

1. Why apply for a trademark?

Our trademark system is based on the principle of registration protection. After a trademark applies for registration in accordance with the law to obtain a trademark right, in addition to using and authorizing others to use the trademark, the trademark owner can also exclude others from designating the same or similar trademarks for the same or similar products / Service registration. If another person uses the trademark without the consent of the trademark owner, and the trademark right is infringed or may be infringed, the trademark owner can request the exclusion or prevention of the infringement. For those who intentionally or negligently infringe the trademark right, they can also request penalty for damages.

2. What are the specific benefits?

(1) Establish a brand to consolidate the market, and have the exclusive right to use the registered trademark on the registered designated goods or services.

(2) The registered trademark is an important intangible asset of a corporate or individual, which can be transferred, authorized, inherited or used to set a pledge.

(3) It may prevent others from applying for registration on the same or similar goods or services by designating similar or identical trademarks.

(4) It may exclude others from infringing the trademark right, and can claim damages from the person who infringes the trademark right intentionally or negligently.

(5) Customs may be requested to prohibit the import or export of goods that infringe on registered trademarks.

(6) Conducive to market competition and advertising, and effectively build consumers’ trust in corporate reputation and quality.

1. When to apply?

Our trademark application for registration or use does not adopt a compulsory registration system. Before the applicant has obtained the trademark right, one still has to use the trademark arbitrarily to commend his goods / services in business, but  should pay attention that the trademark used must not infringe upon the trademark rights of others. Therefore, in order to avoid the uneasy state of trademark infringement being used at any time, and the long-term operation of the brand due to preemptive registration, it is still a waste of effort, it is still recommended to apply for trademark registration as soon as possible to maintain rights and interests and strengthen the brand image in the market.

2. When is it approved?

The examination procedures for trademark registration applications are cumbersome. In addition to the examination of the goods or services designated for the individual case, a search and examination of the registration information of the previous case is required. Are there any legal provisions that prohibit registration, the examination requires approximately 6~7 months, but exclusive of the processing time for notification of corrections, repetitions, defenses, or postponements for other legitimate reasons from the date of receipt of the papers.

3. When will it be renewed?

(1) After the trademark is approved, the applicant shall pay the registration fee within 2 months after the service of the certification. After the registration fee is paid, the Intellectual Property Office will announce the trademark registration in the Trademark Gazette, with exclusive right of use endowed for 10 years.

(2) After the trademark registration, if the trademark owner wants to continue using the registered trademark, he can apply for renewal within 6 months before the expiry of the trademark right period, and each renewal granted for 10 years. The period of renewal granted, counting from the expiry date of the trademark right and innumerous of renewal may be obtained for every 10 years, the trademark is permanently valid.

1. How to use to maintain trademark rights?

The use of registered trademarks is very important for maintenance of trademark rights. Article 5 of Trademark Law clearly defines definition of trademark use, and stipulates the obligations of trademark owners to use registered trademarks in Article 63 of the same law. If a trademark has been out of use for more than 3 years, or using only a part of it, or changing and adding additional uses, in violation of Article 63, will constitute a reason to abolish the trademark registration. In order to remind and guide trademark owners to use registered trademarks correctly and effectively in order to effectively maintain trademark rights.

2. How to exercise trademark rights?

(1) Regularly monitoring trademark publications to see if there exist trademarks occurring not to be registrable, depending on different periods of time or whether to be eligible as an interested party, to legally raising an opposition, or an invalidation trial to cancel the registration, and for any trademark out of use, or use of which improperly, a cancellation may be applied to revoke the registration.

(2) Conduct frequent market investigations, pay attention to the identification and packaging of similar products in the market, to see if action to stop suspected infringement in a timely manner by means of civil or criminal proceedings before the court, a petition before Fair Trade Commission is also feasible.

(3) Apply for customs surveillance and request the customs to seize the import and export goods which are suspected of infringement.

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