How does Taiwanese law protect Trade Dress?

Many companies strengthen consumer recognition of their brands through Trade Dress. For example, Coca-Cola's distinctive curved glass bottle or the extensive green, orange, and red color blocks used by 7-ELEVEN. When we see that special curved glass bottle on store shelves, consumers can easily identify it as Coca-Cola. These unique appearances that a strong impression are known as Trade Dress.

Protection under Criminal Law

To enhance market visibility and differentiate their products or services from those of other businesses, companies often their own logos. This helps consumers quickly recognize the company, fostering loyalty. The most common legal protection for these logos is to register them as trademarks, obtaining trademark rights. Trademark holders can then exercise these rights and, under certain circumstances, may pursue criminal charges if their rights are infringed, as stipulated in Article 95 of the Trademark Act:

Article 95 of the Trademark Act states: "Without the consent of the trademark or collective trademark owner, any of the following acts for marketing purposes is punishable by imprisonment for up to three years, detention, or a fine of up to NT$200,000, or both:
Using a trademark identical to a registered trademark or collective trademark on the same goods or services.
Using a trademark identical to a registered trademark or collective trademark on similar goods or services, likely to cause confusion among consumers.
Using a trademark similar to a registered trademark or collective trademark on the same or similar goods or services, likely to cause confusion among consumers."

Protection under the Fair Trade Act

Beyond using logos, many companies enhance consumer recognition through other unique methods. For instance, Coca-Cola's curved glass bottle or 7-ELEVEN's large green, orange, and red blocks are easily recognizable. These distinctive features are called Trade Dress.

If Trade Dress is successfully registered as a trademark, it can claim rights under the Trademark Act. However, if it cannot be registered or is not registered as a trademark, its legal protection must be considered. In Taiwan, Article 22 of the Fair Trade Act sets out prohibitions for scenarios that affect market competition:

Article 22 of the Fair Trade Act states: "Enterprises shall not engage in the following acts concerning the goods or services they offer:
Using famous names, trade names, company names, trademarks, containers, packaging, appearance, or other indications of others' goods, on identical or similar goods, causing confusion with others' goods, or selling, transporting, exporting, or importing goods using such indications.
Using famous names, trade names, company names, marks, or other indications of others' business or services, on identical or similar services, causing confusion with others' business or service facilities or activities.

The first paragraph's provisions do not apply to the following:
Ordinary usage of common names, or other indications of similar goods or services, or selling, transporting, exporting, or importing such goods or services.
Good-faith use of one's own name or selling, transporting, exporting, or importing goods or services using such names.
Prior good-faith use of the indications mentioned in the first paragraph before they became famous, or use of such indications as part of the business transferred from such good-faith users, or selling, transporting, exporting, or importing goods or services using such indications.
If an enterprise's goods or services are confused with another's due to the acts in the second or third paragraphs, the affected enterprise may request the other to add distinguishing marks. This does not apply to merely transporting goods."

Additionally, Trade Dress in Taiwan can be protected under the Fair Trade Act and also under civil law related to torts. If it constitutes an infringement, compensation can be sought. Taiwanese courts have acknowledged claims for damages for harm to reputation, credit, or business opportunities, allowing rights holders to seek protection for Trade Dress under civil tort law.