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CATEGORY OF GOODS NOT SOLE BASIS FOR DETERMINING SIMILARITY
The Table of Classification of Goods and Ser-vices, compiled by the Ministry of Economic Affairs and appended to Article 13 of the En-forcement Rules of the Trademark Act, and the Reference Index on Similarity of Goods and Services, compiled by the Intellectual Property Office (IPO), have long been used in the han-dling of trademark registration applications, trademark infringement cases, and other trade-mark disputes, as important reference materials for determining whether goods or services are similar. Article 17 Paragraph 6 of the Trademark Act explicitly provides that the determination of similarity between goods or services is not lim-ited by the categorization of goods and services under the Enforcement Rules. Nevertheless, in practice there have still been disputes as to whether the above two documents provide the only basis for determining whether goods or services are similar.
In a 2003 judgment, the Taipei High Adminis-trative Court, citing a 1998 judgment of the Administrative Court (now the Supreme Ad-ministrative Court), held that the determination of whether goods are similar should be based on an overall judgment, taking into consideration the goods' use and functionality, their distribu-tion channels and places of sale, their raw mate-rials and constituents, their relationship to their component parts, their purchasers, their manu-facturers, and other relevant factors sufficient to support an opinion as to whether the goods are similar. As for the categorization of goods under the Enforcement Rules, this was made merely for ease of administrative management and refer-ence. One could not definitely assume that goods included in a single category were similar; nor could one directly conclude, from the fact that designated goods were assigned to different categories, that the goods were not similar. Nevertheless, the above reference materials were of the nature of administrative rules, prepared in order to guide examiners in performing their duties. As such they formed part of the legisla-tive framework for trademark affairs, and should therefore still be regarded as an important factor to be considered when determining whether goods were similar.
In the guidance given in Section 5.3, ''Similarity and Degree of Similarity between Goods or Services,'' of the Examination Guidelines on Likelihood of Confusion Between Marks, which took effect on 1 May 2004, the IPO adopts the same standpoint as the Taipei High Administra-tive Court in the above 2003 judgment.