Whether the "three-dimensionalisation" of a 2D trademark registered by another party constitutes trademark infringement is an important issue. The Intellectual Property and Commercial Court recently adopted an affirmative opinion in this regard in a criminal case against trademark infringement.
The Court pointed out that a trademark should:
- enable consumers of goods or services to recognise that it is a mark to represent such goods or services;
- distinguish such goods or services from others' goods or services.
The "use of trademarks" under the Trademark Act refers to their use on goods, services or related objects for marketing purposes, or the use of 2D images, digital audio and video, electronic media or other media to make the relevant consumers aware of such goods, services or objects.
Unauthorised use of the same or similar trademarks in violation of the Trademark Act includes trademark commercialisation, or their use as three-dimensional goods. Such use constitutes trademark infringement if it is unclear whether it has been unauthorised and there is unfair use as stipulated in the Trademark Act.
For further information on this topic please contact Ruey-Sen Tsai at Lee and Li Attorneys at Law by telephone (+886 2 2763 8000) or email ([email protected]). The Lee and Li Attorneys at Law website can be accessed at www.leeandli.com.