With regard to protection of trade dress of goods or services, Article 22 Paragraph 1 Subsection 1 of the Fair Trade Act stipulates that "[n]o enterprise shall conduct any of the following acts with respect to the goods or services it supplies: 1. use in the same or similar manner in the same or similar category of commodity the personal name, business or corporate name, or trademark of another, or container, packaging, or appearance of another's goods, or any other symbol that represents such person's goods, commonly known to the public, so as to cause confusion with such person's goods; or sell, transport, export, or import goods bearing such representation." As to whether the appearance design of drugs may be regarded as trade dress of goods or services and thus be subject to the foregoing stipulation, the Taiwan Intellectual Property Court (IPC) adopted a negative stance on the issue in the following case.

The plaintiff asserted that it had used the appearance design on its pharmaceutical capsule with orange text on white background for many years, and major medical institutions introduce its capsule as the drug with the appearance design of "orange text on white background," which shows the distinctiveness and uniqueness, and thus should be regarded as a well-known trade dress. Thus, the defendant's use of the appearance design with "orange text on white background" on its product has violated the provision of Article 22 Paragraph 1 Subsection 1 of the Fair Trade Act.

The IPC's decision in the first instance of this case (2018 Min-Zhuan–Su-Zi No. 72) rendered on August 2, 2019 indicated that the drugs involved in this case all require a prescription; it thus analyzed the trade characteristics of prescription drugs from the perspective of physicians, pharmacists and patients, respectively, and reached the conclusion that the appearance design of prescription drugs is not a basis for drug identification and no confusion will arise due to the appearance design:

1.A physician's prescription is issued based on information such as ingredients, indications, pharmacological properties, medication, contraindications, precautions and side effects.

2.A Pharmacist then dispenses the drugs according to the physician's prescription, not the appearance.

3.Having no access to prescription drugs through free trade in the market, patients are unable to choose or purchase a prescription drug based on its appearance design.

The case was appealed by the defendant, and the IPC upheld its first instance position in the decision of second instance, i.e., 2019 Min-Zhuan-ShangZi No. 38, on June 4, 2020. In addition to adopting the position of the first instance decision from the perspective of the buyers (i.e., physicians, pharmacists and patients) that appearance design is not the basis for identifying prescription drugs, the IPC further recognized that the capsule's "orange text on white background" design as asserted by the Plaintiff is not original and lacks distinctiveness and uniqueness. Therefore Article 22 Paragraph 1 Subsection 1 of the Fair Trade Act does not apply in this case.

The drugs involved in the foregoing case are prescription drugs that can only be obtained with a physician's prescription. It remains to be seen whether there is any difference in legal application with respect to drugs that do not require a physician's prescription.