According to the Trademark Act, the good-faith prior use of a trademark before the filing date of a registered trademark may be cited as a defence against a trademark infringement accusation.
In a trademark infringement criminal case in 2021, the Supreme Court held that this defence is restricted to the good-faith use of the same or a similar trademark for the same or similar goods or services before the trademark application date of another person's trademark.
If it cannot be proved that a party made such prior use in "good faith", that party cannot claim to be free from any liability of infringement upon the trademark rights of others. In addition, whether the product is "genuine" is based on whether the product was manufactured by the trademark owner or its licensee.
Therefore, if the product's manufacturing and circulation date is earlier than the filing date of the registered trademark, this does not mean that the product is indeed the genuine product that was manufactured by the trademark owner or its licensee.
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.