The Trademark Act in Taiwan basically does not recognize the right of the unregistered trademarks simply by virtue of earlier use. Nonetheless, since the concept of "use" still plays an important role in maintaining trademark rights, the Article 30-I-(12) of the Trademark Act also known as the Anti-Squatting Clause, protects unregistered earlier used trademarks to some extent.
According to the Anti-Squatting Clause, a trademark should not be registered under the situation that being identical with or similar to another person's earlier used trademark and to be applied for goods or services identical with or similar to those for which the earlier used trademark is applied, where the applicant with the intent to imitate the earlier used trademark, being aware of the existence of the earlier used trademark due to contractual, regional, or business connections, or any other relationship with the proprietor of the earlier used trademark, files the application for registration. However, what kind of "use" is sufficient to establish a claim arising under the Clause above still remains unclear in practice.
In a recent administrative litigation case regarding a trademark opposition, the Supreme Administrative Court in Taiwan expressed an important view on the adoption of the Anti-Squatting Clause. As compare to the decisions before, the court took a stricter approach to the interpretation of earlier trademark use. In this case, the claimant asserted right of an unregistered mark in connection with publishing services. The claimant argued that it had used the mark in an early internal annual member meeting.
Regarding the issue of use, the Supreme Administrative Court held that, the use of the earlier mark must be in "trademark sense" in order to establish a claim arising under the Anti-Squatting Clause. In other words, the claimant asserting unregistered rights under this Clause should show that the unregistered earlier mark was used in ordinary course of trade and in accordance with common transaction practices. In addition, the use should show that the consumers rely on the mark to identify source.
The Supreme Administrative Court further specified that, when a claimant asserts unregistered rights in connection with services, the earlier mark must be used in the sale or advertising of the service to be rendered "for others". If a claimant merely used the earlier mark as a name in handling its own matter, such use cannot be deemed as legitimate use under the Anti-Squatting Clause. Therefore, since the use of the mark was only in internal affairs and the claimant failed to show that the mark was used in associate with publishing, the use of the earlier mark in the case above was not sufficient.