經通國際智慧產權事務所

Newly appointed Premier Frank Hsieh reaffirmed the determination of the Taiwan government in providing adequate and effective protection for intellectual property rights in his administrative report submitted to the Legislative Yuan on February 25, 2005. He instructed the Ministry of Economic Affairs to fully implement the exchange of IP-related information globally and to continue promoting copyright authorization among right holders and trade secret protection among business communities. He also instructed the Ministry of Justice and the Ministry of the Interior to continue enforcement efforts in protecting legal rights of legitimate businesses and in combating pirated activities.
- Tsai, Lien-sheng, Director General

Intellectual Property Office (TIPO)

Executive Summary
Through the concerted efforts of government agencies in combating IP infringements, major achievements in the area of legislative amendments, policy formulation, enforcement results, and education promotion have been observed in recent years. In 2005, Taiwan will continue to implement its adequate and effective IP policies and will also endeavor to combat IP infringements regardless of any fresh forms that might surface in the markets. In view of the latest trend that sale channels for pirated works/goods have moved from peddling on the streets to the Internet, developing a comprehensive and stringent legal framework to intensify inspections of alleged infringements over the Internet has become a center priority item on Taiwan’s IP protection agenda. Our short- and long-term actions will include:

1. Implementing the computer software protection plan to bring business software piracy rate to below 40% in 2005;

2. Strengthening measures on the crackdown of Internet piracy;

3. Sustaining partnership with right holder groups;

4. Facilitating cross border enforcement to deal with cyber crimes;

5. Providing professional trainings and holding workshops for prosecutors, judges, and law enforcement officers to keep them abreast of the latest developments in IP regulations and piracy trends.

Focus On 2005 IPR Policy

The Coordination Taskforce for IP Enforcement held its first quarterly meeting this year on January 28, 2005. In this meeting, major achievements of 2004 were reviewed and priorities for 2005 were discussed. Three policy items were specified for further implementation in 2005:

STRENGTHENING PREVENTIVE MEASURES AGAINST INTERNET INFRINGEMENTS

In view of the complicated conditions in Internet infringements and usage that involve the interests of Internet service providers, copyright holders, and end users, it is necessary for the government to formulate legal, managerial, and implementation measures. Awareness campaigns are also needed to effectively deter Internet infringements in order to promote a sound Internet environment. These measures and actions would help establish a comprehensive legal framework to regulate Internet infringements, launch awareness campaigns to engender IPR concept, help users obtain licenses, enhance self-regulation on Internet service providers and right holder groups, and formulate regulations for Internet usage on campus. As such, the “Implementation Plan for Strengthening Preventive Measures Against Internet Infringements”, formulated by TIPO, will enter into force on May 1, 2005.

Major deliverables of the plan include, 1) establishing a Joint Internet Infringement Inspection Special Taskforce (JIST) to conduct Internet inspections, 2) strengthening cooperation with enforcement agencies in other countries to tackle cyber crime, 3) coordinating with ISPs and right holders’ association to establish protective mechanism to prevent Internet users from infringing IP, and 4) enhancing Internet management at schools.

Implementation results will be reported to the Coordination Taskforce for IP Enforcement on a regular basis. Follow-ups and evaluations of the implementations will also be conducted by the taskforce. This plan will be implemented from May 1, 2005 to December 31, 2007. A final review will be conducted at the end of the project.

REINFORCEMENT AGAINST SALES OF COUNTERFEIT GOODS VIA FLYERS

To eradicate sales of infringement goods through flyers, relevant government agencies reiterated their determination in the January meeting of the Coordination Taskforce for IP Enforcement. Following the conclusion on this issue, the Government Information Office (GIO) circulated a notice in February 2005 to 21 newspapers dispatch associations around the island stating that sales of counterfeit goods via flyers and dispatches of such flyers could violate the Copyright Act.

The NPA, in conjunction with local police agencies, the IPR Police and the Telecommunications Police, has set up a special unit to conduct inspections on sales of pirated ODs via flyers. In March 2005, the NPA further amended its “Implementation Plan for Enhancing IPR Protection” to include “crackdowns on sales of pirated ODs via flyers” as an item in the performance evaluation of local police officers and to raise the cash incentives to encourage police officers to redouble their efforts.

ENHANCING IPR PROTECTION ON CAMPUS

The MOE will continue its efforts to further implement the strategies set out in the “IPR Action Plan 2003-2005”, including 1) monitor the use of copyrighted software at all levels of schools; 2) reinforce inspections on alleged infringements on TANet; 3) conduct a status survey on the use of copyrighted software and establish IP-related legal websites at every school; 4) support the exchange of secondhand textbooks at all universities; 5) promote the inclusion of IP protection into evaluation system for all universities (IP evaluation for vocational and technological colleges takes effect in 2005).

To prevent illegal downloads and the use of pirated software on campus, the Ministry of Education (MOE) has requested all levels of schools to monitor campus Internet usage and computer centers on a regular basis. As of March 2005, the MOE has received 1,095 reports of suspected infringements.

IPR Legislative Amendments
AMENDMENT TO TRADEMARK REGULATIONS
To expedite settlement for trademark disputes and to streamline procedure for administrative remedies, TIPO enacted the Operation Points for Holding Hearings for Trademark Disputes on February 15, 2005, marking a milestone in Taiwan’s IP protection. The purpose of the said regulation is to provide an opportunity for both interested parties involved in trademark dispute to present their views and opinions in a public hearing to help trademark examiners make a final decision. All procedures are transparent and open to the public. The hearing can be conducted by the request of either party involved in the dispute or by the trademark examiners, ex officio. The presence or lack thereof of either party involved in the dispute does not affect the proceeding of the hearing and the decision made by the trademark examiners in charge. Any contention with the final result of the trademark dispute can proceed directly to administrative litigation in accordance with Article 109 of the Administrative Procedure Act, without having to file for appeal. For more related information on the regulation (currently available in Chinese only), please visit TIPO’s website at http://www.tipo.gov.tw.

AMENDMENT ON DATA EXCLUSIVITY PROTECTION FOR NEW CHEMICAL ENTITY (NCE) PASSED BY THE LEGISLATIVE YUAN

The revision to the Pharmaceutical Affairs Act passed its third reading at the Legislative Yuan on January 21, 2005, giving a five-year data exclusivity protection for new chemical entity (NCE). The new measure is in compliance with Article 39.3 of the TRIPs Agreement and international trend, and encourages early introduction of new pharmaceuticals from overseas to help upgrade the domestic pharmaceutical industry.

Government IPR  Enforcement Measures
ENHANCING COMPUTER SOFTWARE PROTECTION

To prevent Internet piracy, the NPA has designated officials to conduct periodic inspections on shopping websites, auction websites, and portal sites every week. As soon as activities of selling counterfeit goods and pirated software are found, the NPA would request webmail providers for the suspect’s registration information. Between January and March 2005, 56 cases involving violation of copyrights and infringement of software were cracked down and transferred, 66 suspects were arrested, and 58,755 pirated ODs were detained.

The Directorate General of Telecommunications (DGT) of the Ministry of Transportation and Communications (MOTC) circulated a reminder to 59 telecom operators on March 29, 2005, saying that all Internet service providers should remove information relating to the selling or downloading of pirated ODs and unlicensed software from their websites or search engines. They should also provide personal data of the suspects as per request by the police or relevant competent agencies.

To crack down on the use of illegal software, TIPO actively invited the Taiwan Computer Association and Microsoft to come up with a plan to license software reproduction. It is hoped that both sides would establish cooperative partnership to reduce illegal software and bring down the software piracy rate.
 

IP Border Control Measures
HEAVIER PENALTY TO BE IMPOSED ON INFRINGEMENTS
To demonstrate the Taiwan government’s determination in implementing IPR protection, the amendment to the Customs Anti-Smuggling Act was promulgated on January 19, 2005, inserting a heavy penalty for import or export of counterfeit goods. Pursuant to Article 39.1 of the new amendment, cargos that are declared for import/export, delivered by parcel post, or carried by inward/outward passengers will be confiscated by Customs if infringements of patent rights, trademark rights, or copyrights (parallel import excluded) are found. The offender can be fined one to three times the value of the goods. Also, maximum fine for false declaration of counterfeit goods, using fake names, hiding goods, or producing forged documents to evade inspections has been increased to NT$1 million from the original NT$30,000, as stipulated in Article 37.2. The Directorate General of Customs stated that if offenses are severe in nature, the maximum penalty imposed can be raised up to NT$3 million and the goods shall be confiscated.

TIGHTENING INSPECTIONS ON PIRATED GOODS VIA EXPRESS DELIVERY
To crack down on counterfeit and pirated goods, the Taipei Customs Office has strengthened random inspections on import goods via express delivery. In addition to implementing random checks on suspected goods, the Taipei Customs Office also reinforces inspections on goods suspected of false declaration.
According to a report, the Taipei Customs Office, in conjunction with the Aviation Police Office of the NPA, found 484 pirated Nintendo game IC boards on December 15, 2004, and 131 pieces of pirated Sony PS2 game ODs on December 24, 2004. On January 17, 22, 23, and 26 of 2005, the Taipei Customs Office seized a total of 2,110 pieces of pirated Sony PS2 game ODs. These cases have been transferred to the Aviation Police Office for further investigation.

Public Awarenes

MAINTAINING PROFESSIONAL TRAININGS FOR JUDGES, PROSECUTORS, AND POLICE OFFICERS

The Ministry of Justice (MOJ) and the Ministry of Economic Affairs (MOEA) continue to provide training programs for IP-related professionals to deepen their knowledge on IPR regulations and redouble their enforcement efforts. The Judges and Prosecutors Training Institute of MOJ has begun to incorporate skills for identifying counterfeit products and inspection into the training program for prosecutor assistants in February 2005 to enhance their professional skills in assisting prosecutors in handling IP infringement cases. In addition, forty-one prosecutor trainees were sent to TIPO for an 84-hour training program on IP laws and practices. To help the IPR Police enhance inspection skills on counterfeit goods, two seminars were organized by TIPO from January 17 to January 28, 2005, in which 100 police officers, or nearly half of the IPR Police force, participated.

 

International Collaboration
INTERNATIONAL COOPERATION WITH INTA

On March 10, 2005, TIPO and the International Trademark Association (INTA) co-sponsored the “TIPO-INTA Roundtable Meeting on Trademark Examination” in Taipei. Four experts from INTA and more than forty participants from relevant government agencies, academia, as well as INTA members in Taiwan attended this meeting. The purpose of this meeting was to provide a platform for experts and professionals from both sides to jointly review Taiwan’s trademark examination guidelines to ensure their compliance with international trends and standards. Four issues were discussed at the meeting–unconventional trademarks, likelihood of confusion of trademarks, competitive and cooperative relationships between the Trademark Act and the Fair Trade Act, and geographic indications. The success of this meeting helps build a bridge between TIPO and INTA to continue with cooperation through the exchange of IP examination practices.
 

DEEPENING PARTNERSHIP WITH RIGHT HOLDER GROUPS

Recognizing that close partnership with right holder associations is essential in building effective and adequate IP protection, TIPO has established mutually benefiting interactions with relevant right holder groups. Information on the latest enforcement result is shared on a regular basis. Anti-piracy actions or projects are often conducted simultaneously as well.

The Taiwan Business Software Alliance (BSA), in support of TIPO’s “We Support Genuine Articles” campaign and reducing Taiwan’s business software to below 40% in 2005, will launch a nationwide anti-piracy campaign from April 1 to May 15, 2005. In this campaign, BSA will provide cash incentives to encourage more leads from the public on computer shops that are illegally reproducing and installing copyrighted software for customers or providing free pirated software with the purchase of hardware. The maximum reward granted to informants is NT$300,000 (around US$10,000).

Latest Enforcement Statistics
National Police Agency (NPA)

NPA reaffirms its IP enforcement efforts in 2005 to 1) deter Internet piracy, 2) curb the sales of infringing goods via flyers, and 3) reinforce inspections in shopping areas where counterfeit goods are likely to surface, so as to cut the flows of these goods.

As of March 2005, the National Police Agency reported 943 instances of IP infringement, and arrested a total of 1,044 suspects. Figures for infringement cases and suspects, compared to those for the same period in 2004, have decreased by 11.12% and slightly increased by 0.58%, respectively.

Trademark infringement cases and suspects slightly increased by 4.42% and 0.19%, compared to those for the same period in 2004. Infringement cases involving copyright drastically decreased by 22.66%, compared to those for the first quarter of 2004. The number of CDs confiscated increased by 44.65% between January and March of 2005 as compared with that in the same period of 2004, which was a result of intensive raids conducted during the Chinese Lunar New Year holidays.

Between February 3 and February 6, 2005, NPA commanded nationwide police officers as well as the IPR Police to conduct a special raid on night markets and shops where pirated goods were likely to be sold. 262 infringement cases and 282 suspects were seized. NPA further prioritizes several night markets in northern, central, and southern Taiwan and requests local police and the IPR Police to conduct inspections on a weekly basis. As of March 2005, fourteen infringement cases have been reported. Among them, twelve were found in northern Taiwan and two were in central Taiwan.

On March 18, 2005, the Taipei City Police Department in conjunction with the MPA uncovered an illegal OD factory. 2,426 pieces of ODs were found during the raid, including 705 video ODs, 110 music ODs, and 90 pornographic ODs. One computer, 116 OD burners, and one printer were detained as well. Three suspects were arrested on-site and immediately transferred to the Taipei District Public Prosecutors Office for further investigation.

Statistics for IP Infringement Cases
Unit：case/person 

Year	Total		Trademark		Copyright
	No. of Cases	No. of Suspects	No. of Cases	No. of Suspects	No. of Cases	No. of Suspects	No. of CDs Confiscated
2004 (Jan. - Mar.)	1,061	1,038	452	536	609	502	411,412
2005 (Jan. - Mar.)	943	1,044	472	537	471	507	595,108
Percentage Change: 2004 (Jan. - Mar.) /2003 (Jan. - Mar.)	-11.12%	0.58%	4.42%	0.19%	-22.66%	1.00%	44.65%

Source: National Police Agency (NPA), Ministry of the Interior

IPR Police (IPRP)

As of March 2005, a total of 323 cases of infringements were reported and 363 suspects were arrested. This marked a plunge of 24.18% and an increase of 24.74%, respectively, as compared with the same period in 2004. 1,451 inspections had been conducted and some 6,312 IPRP officers were mobilized. A total of 149,663 music/video CDs were confiscated, marking a 30.79% drop as compared with the number seized during the same period in 2004. These are concrete evidence that the public offense provision in the Copyright Act is effective in deterring pirated optical disks production and sale.

On January 4, 2005, the IPRP successfully uncovered an illegal OD factory in Taichung. One suspect was caught, and 8,944 pieces of pirated ODs and 14,343 pieces of music ODs were found. Forty-three OD burners, 5,600 pieces of semi-finished ODs, 3,900 pieces of blank ODs, 67,200 pieces of labels, and 57 cases of paper boxes, and 33 boxes of colorful wrapping papers were also seized.

On February 4, 2005, the Cyber Crime Investigation Task Force of IPRP successfully cracked down on an OD warehouse inside an old apartment located in Panchiao City, Taipei County. 25,000 pieces of animation ODs were found.

On March 12, 2005, the IPRP uncovered a major supplier of counterfeit name brand products in Taipei County. Fourteen manufacturing machines, five pattern rollers, 45,706 kilograms of metal accessories (including 1,758 LV latches), three pressing molds, and five injection machines were seized. 1,192 name brand leather accessories, fifty-one rolls of semi-finished leathers, and other information were also detained.

Joint Optical Disk Enforcement Taskforce (JODE)
As of March 2005, a total of 282 inspections were conducted by JODE. Of these, 164 took place in the day and 118 at night.Three suspects were prosecuted. It is worth noting that none of these cases were found violating the Optical Disk Act and no illegal ODs were seized during the first quarter of 2005. This result proves that JODE’s enforcement efforts are having a deterrent effect on infringements.

Number of Inspections		2004		2005
		Jan.- Mar.		Jan.- Mar.
		249		282
		Day	Night	Day	Night
		155	94	164	118
Number of Cases Found Violating the Optical Disk Act		4		0
Number of Plants	Manufacturing Plants	0		0
Closed	Packaging Plants	0		0
Number of Cases Prosecuted		3		0
Number of Suspects Prosecuted		7		3
Number of Administrative Dispositions		0		0
Number of Machines Seized		4		0
Number of Illegal ODs (Pieces)		5,280		0

Source: The Joint Optical Disk Enforcement Taskforce (JODE), Ministry of Economic Affairs

 

The Directorate General of Customs (DGC)

As of March 2005, the Customs found 96 cases of trademark false declaration upon exportation and one case of trademark infringement. Since the abolishment of EMS, the DGC has established close cooperation relations with right holders and periodically co-organized workshops or seminars with them to enhance inspection skills for Customs officials to effectively deter the exportation of computer program related products. On March 29, 2005, the DGC and Nintendo jointly held three workshops Customs officials on inspecion skills of Nintendo’s game software. 160 Customs officials participated in the workshop. This was a good example of coopertion between Customs and right holder groups in joining efforts agaisnt infringements.

In addition, to enhance Customs officials’ inspection skills on counterfeit cigarettes, the DGC and the JT International co-sponsored eight workshops in Keelung, Taipei, Taichung, and Kaohsiung Customs Offices, in which 400 Customs officials participated.
 

Judicial Rulings (Judicial Yuan)
According to a report by the MOJ, 625 suspects were convicted of IP infringement as of March this year, marking a decrease of 21.19% over the 793 convictions for the same period in 2004. Among them, 314 suspects were given imprisonment, accounting for 50.24% of all the convictions. Six suspects were sentenced to more than two years’ imprisonment. 156 suspects were detained. Sixty-three suspects were acquitted, marking a big drop of 40.57% as compared with that in the first quarter of 2004.
 

Status of Adjudication of District Public Prosecutors Offices
（January to March 2005）unit: person

Year	Total	Imprisonment							Deten- tion	Fines	Not Guilty	Other
		Subtotal	Less than 6 months	6 to 12 months	1 to 2 years	2 to 3 years	3 to 5 years	More Than 5 years
2004 (Jan. - Mar.)	793	393	270	33	82	6	2	0	190	28	106	76
	100%	49.56%	34.05%	4.16%	10.34%	0.76%	0.25%	0	23.96%	3.53%	13.37%	9.58%
2005 (Jan. - Mar.)	625	314	253	9	46	6	0	0	156	19	63	73
	100%	50.24%	40.48%	1.44%	7.36%	0.96%	-	-	24.96%	3.04%	10.08%	11.68%
Absolute Change	-168	-122	-17	-24	-36	0	-2	0	-34	-9	-43	-3
Percentage Change: 2005 (Jan. – Mar.) /2004 (Jan. – Mar.)	-21.19 %	-31.04 %	-6.30%	-72.73 %	-43.90%	0.00%	-100%	-	-17.89%	-32.14%	-40.57%	-3.95%

Conclusion

Protection of intellectual property rights is a continuous and long-term task that needs the orchestrated efforts among relevant government agencies. In response to the development of new forms of crimes, enforcement agencies also need to take quick actions and effective measures against counterfeiting and pirated activities. In its “Challenging 2008—National Development Scheme”, the government has placed IPR protection at the center of the national agenda. President Chen Shui-bian and Premier Frank Hsieh also stressed the significance that IPR policy plays on Taiwan’s industrial development and national image. While 2005 will be the final year in implementing the “IPR Action Plan 2003-2005”, all enforcement agencies will continue to maintain the momentum in improving our IP environment, adhere to implementation plans in enhancing computer software protection and preventing computer crimes, and take effective measures to combat any new form of infringements. We will, through all efforts of the government, sustain our endeavor in developing a healthier IPR protection environment in Taiwan.