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In determining whether trademarked products are counterfeits or constitute a trademark infringement, policemen, court's public prosecutors, judges or other judicial authorities and the Customs, in principle, must first confirm whether those products are manufactured by the trademark owner itself or by a licensee. According to current practice, the trademark owner or its exclusive licensee or any party they designate may provide an assessment report, which states the difference between the genuine products and the suspected counterfeits and draws a conclusion on whether these products are counterfeits. The assessment report may serve as a reference by policemen, court's public prosecutors, judges or any other judicial authorities or the Customs. If the infringer does not argue the probative value of an assessment report, the report will normally be accepted as evidence. However, if the infringer raises any objections, whether or not such a report can be used as evidence might remain in doubt.
The Intellectual Property Court (IP Court) states in its Judgment in 2011 on a trademark infringement criminal case that according to Article 198 of the Code of Criminal Procedure, a presiding judge, commissioned judge or prosecutor may select one or more appraisers from the following: 1. a person who has special knowledge and experience concerning the matter which requires expert assessment; or 2. a person who is appointed by a public authority to perform the assessment. Article 208-I of the same Code provides that a court or prosecutor may request a hospital, school or other equivalent authority or group to make an assessment or to examine another's assessment.
The IP Court states that in this case, as the appraiser was appointed by the trademark owner, the assessment report provided and the statement made provided during the interrogation by the police were not made by a party who was selected or requested by a presiding judge, commissioned judged or prosecutor, nor by any prosecution authority. Therefore, such reports or statements cannot be admitted as evidence.
By citation of the IP Court's points of view and by referring to another Supreme Court's Criminal Judgment in 2007, Kaohsiung District Court decided in its Judgment in 2013 that the assessment report could not be accepted as evidence in support of this case because the defendant and the defense attorney had already denied the probative value of the assessment reported provided by the appraiser appointed by the trademark owner itself.
It may be justified for the IP Court to conclude that the assessment report independently provided by the trademark owner has no probative value. However, as such decisions may severally affect current assessment practice in respect of trademark infringement.
