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REPRODUCING PRODUCT PACKAGING IN WEB FOR AD-VERTISING DOES NOT IN-FRINGE COPYRIGHT
Reproducing artwork from goods' packaging on an Internet website, to advertise the sale of the goods concerned, is a very common business practice. However, the issue of whether such reproduction infringes copyright, if done without permission from the copyright owner in the packaging design, has been hotly disputed in practice.
In a 2004 criminal judgment, the Taiwan High Court stated that since the Internet is widely used by the public at large, when the defendant re-produced on its website the packaging of re-corded works created by the plaintiff and others, this served not only to advertise the sale of the genuine recorded works, but also to assist con-sumers interested in purchasing such products in gaining information online as to the content of the works. This was in no way contrary to the original intent of the plaintiff in printing the packaging of the recorded work, and the result of such use by the defendant had no impact on the potential market for, or current value of, the photographic and artistic work embodied in the packaging; moreover, it was in keeping with modern market trading practices. As such it met the criteria for fair use laid down in the Copy-right Act, and did not constitute copyright in-fringement.
There have also been similar disputes with re-gard to trademark infringement. Many automo-bile and motorcycle dealerships and repair shops display various car or motorcycle brand logos on their signboards. Whether this practice, if un-authorized, amounts to infringement of the trademarks or service marks concerned, has also been highly controversial in practice. In a 1985 criminal judgment, the Supreme Court held that such display did not of itself constitute "use" of a service mark. Subsequently, some other courts have also taken the same view.
In its judgment, the Supreme Court noted that the National Bureau of Standards (now the Intel-lectual Property Office) had stated in a legal in-terpretation dated 22 March 1985 that a service mark was a mark used by a business to identify itself, so as to enable persons seeking services to distinguish the service provider and its quality and reputation. But the widespread practice by motorcycle dealers of displaying brand logos, whether in terms of the subjective intent of those displaying the logos, or of the objective under-standing of consumers at large, was merely an indication of the type of service or items of repair offered, and was not a means to identify the ser-vice provider or distinguish its quality or com-mercial reputation. Thus such display could not be said to constitute "use" of the service marks concerned.
The Supreme Court did not entirely accept the view of the National Bureau of Standards, but held instead that the question (be it in terms of subjective intent or of consumers' objective un-derstanding) of whether such display is merely an indication of an item of service, or is a means to distinguish a service provider and its quality and reputation, must be determined according to the specific facts of each case.
It is also a common practice of businesses such as photographic studios or department stores to display various brand marks in their catalogues, on signboards, or on in-store displays. From the above Supreme Court judgment, it appears that one will not know beforehand whether the courts will regard such display merely as an indication of the goods offered for sale, or as use of the trademarks concerned and will act at his own peril.