Strategy In Taiwan©Part
I of II
Field of Endeavor
The present article relates to Intellectual Property Rights (IPRs), and more particularly to the anti-counterfeiting strategy for protecting IPRs in Taiwan.
IPRs are getting more and more important in this knowledge-based era, it is
generally believed that anti-counterfeiting legislation and attitude adopted in
a country are measurements for indicating whether the country is a developed,
advanced or IPR-protecting one. If
yes, she might have a better economic environment and would be regarded as a
place where businesspersons would like to invest and do their businesses.
an anti-counterfeiting strategy in a specific country is considered, the
following events must have happened and/or been considered:
There are one or more IPRs in the specific country.
Before this can happen, it goes without saying that there must be an IP
law protecting the IPR;
2. There are one or more persons who engage in counterfeiting a product protected by the IPRs. Before this can happen, it is natural that the technological level in the country allows those persons to engage in such counterfeiting actions;
3. There are one or more laws in the specific country which can be applied to curb the product-counterfeiting actions. Before this can really work, she must have realized through being pressed or educated that anti-counterfeiting measures will help her become economically better in the future;
4. There are one or more times where anti-counterfeiting measures taken by her relevant authorities are not satisfactory. This must be true before we need to work out a strategy for the anti-counterfeiting matter;
5. There are one or more alternatives to which the anti-counterfeiting remedies can resort by which the anti-counterfeiting effect can better be improved. This must be true since the matter cannot be rectified if no alternative can be utilized;
6. There exists a set of empirical rules or steps through which an IPR owner can follow in order to better protect its IPRs. This must be true before the word “strategy” can come to existence for the present article.
Since a sound legislation is anticipated to improving or providing the best predictability as to what will result from a legal behavior, if it really is, not only it would be self-explanatory for a law-offender to understand what legal consequence it is to bear but also it is clear and easy for the injured to take a legal measure for being remedied. The word, strategy, itself gives rise to an expression that a person who can contribute or propose a correct, sound and/or wonderful strategy is a great, wise and/or talented one by whom a sound strategy becomes available. Now, the following questions come:
1. If the relevant legislation is sound, there will be no necessity for people to figure out what are best strategies in enforcing the rights in each country. Since every law firm in every country tries to provide a strategy for enforcing IPRs or anti-counterfeiting in each respective country, does this mean on this earth, there is no country capable of enacting sound legislation? If not, why does every law practitioner in each respective country badly love to introduce or create respective strategy?
2. If the involved legislation is not sound, it appears to be very strange because the congresspersons or legislators consume so many resources without any limitation in each country to do only one job of enacting the law so that how it could be imagined that this could happen? If yes, why it bother us to write/read this article?
3. The real scenario must not be as simple as the above-described. Otherwise, anything relating to the word, strategy, must violate the spirits of having a law, or alternatively, any law must attract no relevant strategy. Accordingly, it might be reasonable for us to reason as follows:
A. A specific law is intended to provide norms for matters in a specific aspect so that it is enacted in a sense to make relevant matters clear rather than to provide remedies for the infringed;
B. A strategy is intended to organize or produce possible or potential measures an involved party could exercise and is often derived from many laws. Since the targets or purposes to be respectively dealt with by the law and the strategy are different, the law and the strategy are not necessitated to be directly inter-dependent and/or interlinked with each other although they should be mutually relevant;
C. It is said that the human being tends to take advantages of everything including the law itself. If this is really or partly true, a strategy is therefore imaginable, necessary or desirable even if the law itself is soundly perfect because correctly applying the law and/or avoiding the application of the law in themselves are never easily understandable to a layperson;
D. Furthermore, if there really exist flaws or defects in the law, it becomes natural that a well-deployed strategy will win most significant due or undue benefits for the involved party.
4. Accordingly, since it appears that every law might ensue a strategy to its own, we had better not question and/or discuss any more whether a strategy to which kind is necessary or not.
there are some disputes as to whether or not the IP laws really boom the
propulsion of the research and development in the industry and/or boost the
prosperity of the technical level of a specific country, it goes easily to
experience that we can hardly find out a country nowadays without an IP law
legislation. Although we cannot
know how much we can attribute to such legislation, the achieved modern
substance civilization partly or significantly driven by IP laws has brought
forth kinds of conveniences for the human being if we pretend not to mind
whether our living environment is subject to vital threats through unnecessary
waste and/or competition by consuming various resources.
Counterfeits come from market demands generally coming from the desire for physical or spiritual enjoyment generally coming from necessity or vanity normally happening to a human life normally tried to be made better by the human being who creates IP laws, manufactures counterfeits and tries to develop a strategy to curb counterfeits being hard to be banned if the technological level in the specific country allows counterfeits resembling or even superior to genuine products under one’s regular logical understanding.
In this economy-directed era, politicians always try to solicit votes through oral pleadings as to how and why they could make economical achievements for the people or their country, which is generally made possible by creating an economic environment which can be successfully formed partly through formulating a economic law-framework normally containing therein one or more laws which can be applied to curb the product-counterfeiting actions in order to publicize the image that she is an IP-respecting country in which an IP owner needs not worry whether it can legally make money as long as its IPR-protected products are really welcome in the market. For a strong IP country, she might have better IP provisions whereas for an IP-less-advanced country, she might have finally realized only through being pressed or educated that anti-counterfeiting measures would help her become economically better in the future.
Although there is a saying that the history always repeats in itself so that we tend to come across identical or similar events, we are living on earth though accumulation of past experiences and/or knowledge. If anti-counterfeiting measures petitioned to be taken by relevant authorities in a specific country are satisfactory, there will be no chance that we are writing this article. Although we cannot know whether we can really propose or contribute some kind of strategy for the anti-counterfeiting matter in Taiwan, we are trying here to see whether this article can really be informative.
As long as there is a necessity to be involved in a strategy, there must be one or more alternatives to which (we, matters or) the anti-counterfeiting remedies can resort by which the anti-counterfeiting effect can better be improved. This must be true since the matter cannot be rectified if no alternative can be utilized. Even in daily life, we can find there really are tactics or strategies by which we can do the matter in a smoother or more efficient way. It goes without saying that there must be strategy for anti-counterfeiting purpose, which should never be easily achievable obtainable when compared to that for the daily life.
known, this world is always changing with time for every nanosecond.
Although a changing society or environment will not come into norm by a
certain strategies, there must exist a set of empirical rules or steps, at least
statistically, through which an IPR owner can follow in order to better protect
its IPRs. This recognition must
come before the word strategy can come to existence for the present topic in
as the anti-counterfeiting strategy in a specific country is concerned, it is
believed the following 5 factors are significantly involved in and need be dealt
with before we can know what the anti-counterfeiting strategy is in the specific
Items to be Discussed for Presenting Issues We Concern
*The substantive laws of
the specific country
*The habits and customs of
the specific country
*The economic and developed
degree of the specific country
*The enforcement laws of
the specific country
*The enforcement environment of the specific country
would like to respectively examine the above five factors in Taiwan before we
can respectively reach a conclusion as to what the anti-counterfeiting strategy
for a specific consideration is in Taiwan.
The substantive laws of
anti-counterfeiting in Taiwan
As is known, IPRs include
patent rights, trademark rights and copyrights.
In the past, our Patent Law includes therein criminal provisions for
infringement on either an invention patent, or a utility model patent or a
design patent. All criminal provisions were able to be deleted only until
early 2003. Trademark Law and
Copyright Law still contain therein heavy criminal punishments though quite a
few scholars claim that all IPRs are economic laws.
Accordingly, criminal provisions shall not be incorporated in the laws
since economic problems shall be only resolved by economic solutions rather than
criminal ones in their views.
As a matter of fact, heavy
criminal punishments in the laws of Taiwan largely come from the pressures of
the US since US businesses or tycoons make complaints to the US government,
which in turn applies a great pressure to the Taiwan government whose officials
generally trust the US is the most important diplomatic support of Taiwan and
are normally pliable to the pressures from the US administration.
The reasons why the US administration applies pressures to the Taiwan
government in adopting the grave criminal provisions are based on the following
1. Relevant US businesses
have lost a lot of economic interests through counterfeiting actions in Taiwan;
2. Relevant US businesses
will face problems of subsistence if counterfeiting actions continue to happen
in Taiwan; and
3. The quality of
counterfeiting goods made in Taiwan is not inferior to or even is superior to
that of the genuine source.
Accordingly, so far as the
substantive laws for anti-counterfeiting are concerned, it should be easy for
one to believe that Taiwan has an encouraging anti-counterfeiting law protecting
environment. Let us take a brief
look at the following 2 out of 14 penal articles in Taiwan Copyright Law as
examples to have an initial idea about what is believed as above.
another’s proprietary copyright by means of reproduction through profit-making
intention shall be punished with imprisonment for not more than 5 years,
detention, or in lieu thereof or in addition thereto a fine over NT$200,000 but
not exceeding NT$2,000,000.
another’s proprietary copyright by means of reproduction of not more than 5
copies without a profit-making intention or with an infringing sum over
NT$30,000 when calculated on the basis of market price of obtaining legal works
at the time of seizure shall be punished with imprisonment for not more than 3
years, detention, or in lieu thereof or in addition thereto a fine not exceeding
Whoever offends the crime
of the first paragraph by means of reproduction through CD shall be punished
with imprisonment for not more than 5 years, detention, or in lieu thereof or in
addition thereto a fine over NT$500,000 but not exceeding NT$5,000,000.
offends the crimes of Articles 91(1), 91(2), 91bis, 92 or 93 shall be punished
with imprisonment for over 1 year but not more than 5 years, or in addition
thereto a fine over NT$300,000 but not exceeding NT$3,000,000.
Whoever habitually offends
the crime of Article 91(3) shall be punished with imprisonment for over 1 year
but not more than 5 years, detention, or in addition thereto a fine over
NT$800,000 but not exceeding NT$8,000,000.”
Although the period of the imprisonment might not be the highest in this world or the punishments stipulated here might not be the gravest, it is believed that the stern extent for the above-described is never loose.
The habits and customs
relating to anti-counterfeiting in Taiwan
The Taiwan culture mainly
branches from The Chinese culture. Traditionally,
a literary person was proud of the fact that his (her) article was so wonderful
as to be possible for being caused widespread all over the nation even without
being monetarily compensated because he or she would believe and feel having
been compensated enough through his (her) name having been well-known to the
world. Although the literary person can still feel satisfied because
nearly every one would pay hearty respects to him/her capable of creating a
masterpiece, it is uneasy for him/her to become a rich person.
Such situation has been
changed a lot by IPRs created by the Western society.
Although the author of Harry
Potter sighed out that she has gained too much through her books, it is clear
that not every author could have her luck or fortune to be flooded with money or
have the mind or conscience to feel satisfied.
Although IPRs have made it possible that the inventors or authors can
become rich persons, there are voices that establishing a creation industry
rather than a cultural environment might not be a very good phenomenon, which,
however, is not a topic here.
IPRs have changed this country a lot, unless having the experiences of being
pursued, it appears that people in the middle and/or lower classes do not care
much about whether goods they buy are counterfeits but care much about whether
goods they buy have acceptable or desired quality and/or price.
We do not want to confess or admit that middle and/or lower classes of
our nationals are meaner in personalities since it is never seldom reported that
quite a few people, including those who belong to the upper class, coming from
countries all over the world are very fond of purchasing counterfeits here.
Instead, taking the trademark as an example, what we need to reconsider
for such social phenomenon might include:
Whether the genuine products cost too much?
2. Why the quality of
counterfeits need not be poorer than that of genuine ones?
3. Is it good or necessary
for the society or world to become brand-oriented?
4. Does the world need
5. Is it necessitated that
goods of a famous trademark must be expensive?
Again, the above questions
are not topics to be discussed here but we want to make it clear that the above
questions need not be raised merely from viewpoints from the consumers or
scholars. Specifically, trademark owners might also be benefited after
having potential partial solutions to the above issues through due
considerations and/or meditations.
For coping with this factor
from the trademark aspect, the suggested strategies would be:
1. Trying to divide
consumers into different levels to be respectively provided with goods of
different grades/qualities to be sold at different prices;
2. Tough pursuit of any
possible infringement in order to effectively curb any future potential
3. Trying to link national
sentiment of local consumers with a specific trademark by sponsoring kinds of
activities in a specific country in order to improve the image of the specific
trademark and to engrave in the mind of local consumers that it is proud to own
a goods having the specific trademark so that it is absolutely worthy of costing
some money to own such goods.
Habits and customs cannot
be switched or changed very soon because they are historically formed in a
certain period of time and can only be phased in or out historically either
through intentionally formatting or randomly or optionally plasticizing
activities or events.
The economic and developed
degrees in Taiwan
It appears well-known that
Taiwan has and/or had some economic miracles.
It also seems that Taiwan has been categorized as a developed country.
Accordingly, so far as economic and developed degrees are concerned,
Taiwan is a good place for which we would like to express:
1. Taiwan might be a good
place to do business;
2. Taiwan offers a good
market environment to do business although it might be true that our market
scale is relatively small;
3. Taiwan might be a good
place to make money;
4. Taiwan might be a good
place to do investments; and
5. Taiwan might be a place
to live at.
Although the criminal rate
is increasing and the society is getting more and more westernized, generally
speaking, it is very easy to find Taiwanese are kind and easy to get along with.
We are only telling the truth but not advertising or promoting for our
country here since we are not paid by our country to say so.
Turning back to our topic
here, the modern economic society has the features of consuming a lot of
everything. So far as the economic
booming condition is concerned, it seems that consuming is pretty welcome by
every body all over the world since it would mean that there will be working
opportunities for producing various staples to be consumed.
From some viewpoints of earth resources, consuming would mean wasting,
which, however, has not been regarded as a very serious problem yet.
In traditional Chinese society, saving is a virtue and an important merit
for evaluating a person. It has
been uneasy to find out a young person here who will much value any usable or
reusable resources because any resource is economically quantified and can be
easily replaced as long as the user has the resource to own or make money.
Although a salary receiver normally will have a not-bad income from the
viewpoint of the old generation capable of affording the life without even
spending more than 30% of the received salary, it is not seldom to find out the
phenomenon that the salary receiver of the young generation needs financial
helps from his/her parents for spending purpose over the full month.
1. That the younger
generation in Taiwan contributes a lot to the consumption of goods or resources,
which means that the general public is easy to get frantic about a popular
product, which means that a business needs not worry about whether its products
can find a market in Taiwan as long as it is certain that the product it
produces is popular. Certainly, we
must confess that as a relatively small island, Taiwan market itself is not
large, especially in this globalized era, the volume can never be large if a
product is specifically provided for circulation only in a local rather than an
international market. Fortunately,
Taiwan is a good place to arrange a product, national or international, to be
2. That Taiwan is a place
of volume consumption as long as the provider can arouse interests of the
general public. Although it appears
this is true everywhere on earth, we are confident to advise that any enterprise
shall not take the financial or economic power of Taiwanese as a consideration,
an issue or a factor for volume consumption;
3. That Taiwan is a place
to consume expensive products. This
means that there generally are rich persons who do not knit their brows in
buying an expensive product as long as the provider can drive them to exercise
such behavior. This might not be
very true since one can easily find in Taiwan without much difficulties that
there are even people of the younger generation who do not contract their brows
either upon buying quasi-expensive products which are objectively considered
beyond their financial capability from something like a relatively conservative
4. That Taiwan is suitable
for being brand-oriented, either categorized in levels or classes, or devoted to
only a certain rank or class of consumers.
The above analyses might
somehow be doubted in that it appears to be made from the viewpoint of the
younger. As a matter of fact, even
people of the older generation are getting more and more brand-oriented and
forgetful about the saving virtue because to win an administration through
election, the government is supposed to take care of any one who has no money in
the pocket to live with. As a
result, the above analyses should either be fully or partly correct or hardly
wrong finally. Accordingly, the
only problem left here is how a business can create a hot or popular product
attracting money from pockets of people of any tier of age from various ranks
all over the world.
More specifically, although
we raise the question as to whether this world needs a famous trademark in the
above, we did not mean that this world needs not a famous trademark, which
normally can satisfy, at least emotionally, the consumer.
As is understood, when one is satisfied, he/she will not cause troubles
or other waste to the world or even will do something helpful to the world
although we are not sure whether some troubles have been aroused before he/she
gets the money to get himself/herself at least emotionally satisfied. It
goes without saying that when more and more famous trademarks have been
registered and have ever been enforced and a more developed degree has been
achieved in a country, the country and her nationals must have a popular
recognition that IPRs are important and should be respected.
The enforcement laws in
The Taiwan economy relies a
lot on international trades. As a
small island, we do have done quite a big trading.
Although our yearly income is not bad, the life indexes here are not low.
More importantly, commercial advertisements drive our various potential
desires to be completed by devoting ourselves to hard work for making money to
satisfy our desires, which might be unnecessary in leading an ideal life.
From the viewpoint of a philosopher, a peaceful but colorful life does
not necessitate so many modern desires, which cost so much money and consume so
many resources. Nevertheless, in this complex and complicate world, due to
not small trading volume, Taiwan is subject to foreign pressures to not only
provide enough substantive legal protections for IPRs as described above but
also provide effective enforcing legal framework therefor.
We would like to outline
procedures for enforcing IP Rights in Taiwan hereinafter.
Specifically, as neatly shown in the attached flowchart, alternatives for
enforcing IPRs in Taiwan include as follows:
1. Criminal private
complaint: The right owner can institute a legal proceeding against the
infringer if the injured legal interests belong to an individual.
Since there has been no criminal punishment for the patent infringement
under the current Patent Law and the trademark violation belongs to the purview
of public complaint, only certain copyright offences can be pursued by such
private complaint. After complained, the district court will try and decide on
the case. The first instant
decision can be appealed to the competent High Court and then finally to the
Supreme Court if the offence is not a crime which cannot be sentenced to more
than 3 years or damages or claims involved in are more than NT$1,500,000.
2. Complaint to the public
prosecutor: Since the trademark law is taken to be public law so that all
offenses relating thereto must be indicted through the public prosecutor, so are
some significant offences under the Copyright Law.
Pursuing a criminal through this route must be processed by the court
also only after the investigation has been performed by the public prosecutor.
If no indictment is rendered thereby, the complainer can petition a
reconsideration to the general prosecutor in the High Court.
3. Written complaint or
verbal report to the judicial police: The judicial police here includes the 2nd
Security Police Group of and the Criminal Investigation Section and
Administration Section in the National Police Administration, the Criminal
Investigation Corps and Economic Affairs Division of the Police Bureau in each
County or City, the Investigation Bureau of the Department of Judicial Affairs
which mainly deals with major crimes but will accept such complaint or report
when they take they are not so busy, and the Criminal Investigation Bureau and
Economic Affairs Section of a Branch Police Bureau. After receiving such complaint or report, the office will
initially investigate the matter. If
finding founded, the office will petition for a search warrant in order to
perform a search or raid during which a seizure might be made if offending
articles are present. Thereafter,
the case is referred to the Prosecutor’s Office in the competent district
4. Written complaint or
verbal report to a quasi-judicial authority: The quasi-judicial authority
includes various Customs and Coast Guard Administration.
The procedures to be followed are generally the same as those of the
judicial police above-described except that the seizure needs not happen outside
of but normally are at their offices.
5. Requesting helps from
private associations: IPRs owners establish quite a lot of associations in order
to enforce their IPRs. Since they
are private entities, they cannot exercise any public power to perform their
rights. Instead, they can only do
some private prior verification and refer the case to the judicial police for
further processing in order that the latter can further proceed with the matter
in an efficient and speedy manner. Sometimes,
if an industrial association is credible, its opinions will be highly valued by
the authority or the judicial police. Examples
of such associations include IFPI (International Federation of the Phonographic
Industry) Members Foundation in Taiwan, Business Software Alliance and