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USE OF MARKET RESEARCH AS EVIDENCE IN TRADEMARK DISPUTES
Article 43 Paragraph 1 of the Trademark Act provides that an opposition petitioner or trade-mark owner may present a market research re-port as evidence in a trademark opposition action. Article 6 Paragraph 7 of the Main Points for Determining a Well-Known Mark, as amended by the Intellectual Property Office on 10 August 2000, also provides that a market research report may be used as a documentary basis for deter-mining whether a trademark or other mark is well known. But because neither the Act nor the above Main Points specifically defines the re-quired methods and content of such market re-search, there has been great disagreement over these matters in practice.
In 2004 judgment in a trademark opposition case, the Supreme Administrative Court held that for a market research report to be acceptable as evi-dence, it must meet the usual conditions for ad-missibility of evidence, and must also be free of defects. If the geographical area sampled, or the population targeted by such research, were in-appropriate, then the research report would be defective and could not be adopted as evidence.
A 2007 judgment of the Taipei High Adminis-trative Court stated more specifically that the reliability of a market research report would be affected by whether it was impartial and objec-tive in terms of factors such as the credibility of the organization conducting the research (in-cluding the length of time it had been engaged in market research, the quantity of such research it had performed, and the research reports it had previously produced), the research methods used (survey duration, survey methods, geographical area of survey, target population, sampling method, size of sampled population, sample size, etc.), the design of the questionnaire content (whether it is appropriate for the intended pur-pose), and the relevance of the content to the conclusions (there should objectively be an adequate causal relationship between the con-clusions and intended purpose of the research, and the facts at issue in the case under consid-eration).
With regard to the case before it, the Taipei High Administrative Court stated that the content of the survey questionnaire used by the plaintiff was designed by the plaintiff itself unilaterally and in a one-sided manner, which cast doubt upon its impartiality; furthermore, the research methods, choice of population, and sampling method were unclear; and apart from a very small number of relevant consumers, there was no evidence whatever to demonstrate that the population targeted by the survey included "relevant enterprises" (as referred to in the Trademark Act); the choice of locations at which to conduct the survey also was not objective, being largely concentrated on locations such as hospitals, elementary schools, and railway sta-tions. Thus the reliability of the research was open to doubt.