Proposed Amendment to Taiwan's Trademark Act concerning the non-registrability in violation of public policy and good morals

Section 30.1.7 of the Trademark Act provides that the trademark authorities shall refuse to register a mark if such a mark will be contrary to public policies or good morals of the nation.  However, there is no clear interpretative rules as to what constitutes a violation of public policies or good morals, which are sometimes difficult to ascertain and therefore, subject to case by case analyses at the judicial branch.  In an effort to greatly improve the ambiguities concerning the application of the said sec. 30.1.7, on March 25 Taiwan's Intellectual Property Office proposed an amendment to address the problem.  The following summarizes the salient points of the proposed amendment:-

1.   Whether the registration of a particular mark will be in violation of public policies and/or good morals should be analyzed by the particular mark's appearance, the notion it conveys and/or its pronunciation taking into account in the totality the social environment, economic activities and in addition, factors associated with the designated goods and/or services at the time of the application.

2.   As to whether a mark will be considered having an offensive nature, the determination should be analyzed on the basis of the relevant public, rather than the general public, taking into consideration multiple factors including elements and characteristics of particular cultural and/or racial backgrounds including aboriginals.

3.   A mark embodying a notable historic figure or late person of widespread repute should not be registered if the registration of such a mark would create a negative connotation and/or disrespect for such person, or would result in the unfair competition in the market in the designated goods and/or services, which should be analyzed on the basis of the factors such as the socioeconomic conditions at the time of the application, the degree of the repute, prior usage of the mark (if any), the purpose and rationale underlying the mark's application, the relationship between the applicant and the mark in question, etc.