英文摘要 |
This Article has two main parts. The first part examines the three kinds of limitation of trade mark rights set out in the 2008 Trade Mark Directive in the European Union. A third party's unauthorised use of another's trade mark would fall within the scope of one of the limitations where the third party uses the mark 'in accordance with honest practices in industrial or commercial matters' (emphasis added). Otherwise, the unauthorised use of trade mark would fall outside the scope. This part of study analyses the major issues relating to the three limitations. It focuses particularly on the issues regarding the common condition of all the three limitations, namely 'honest practices'. It also considers the relevant preliminary rulings delivered by the European Court of Justice during the last 10 years. The second part of this Article examines the limitations of trade mark rights set out in the first subparagraph of Article 36(1) of the Trade Mark Act in Taiwan. The legislator in Taiwan amended this Act in 2011. Nonetheless, it remains necessary to revise the provisions once again in the near future. This Article argues that the first subparagraph of Article 36(1) of the Act is vague, as it does not well categorise the limitations, and it does not define the requirement of 'honest practices'. In addition, the Intellectual Property Office in Taiwan states that the first subparagraph of Article 36(1) sets out two kinds of trade mark fair use, namely descriptive use and normative use. Nevertheless, the analysis in this study indicates that the limitation relating to normative use is not set out in this provision. |