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COPYRIGHT NOTICE ADMITTED AS PROOF OF TRADEMARK USE
Under Article 23 Paragraph 1 Subparagraphs 12 and 14 of the Trademark Act, registration of a trademark should be refused if the mark is iden-tical with or similar to a famous or earlier used trademark; and under Article 57 Paragraph 1 Subparagraph 2 of the Act, the registration of a trademark may be revoked, if the mark is not used for a certain period of time. Therefore, how to prove that a trademark has been used is a cru-cial issue in trademark dispute cases.
In a 2003 trademark opposition case before the Taipei High Administrative Court, the plaintiff presented evidence of trademark use in the form of product literature, promotional leaflets, pho-tographs showing the products' appearance, product packaging, and consumer feedback forms, and cited Article 13 of the Copyright Act, which provides that if the name or well-known pseudonym of the author, the date and place of publication, or the ownership of economic rights in a work are represented in a normal way on the original work or its published copy, or at the time of publication, such representations should be presumed to be authentic. The plaintiff asserted that all of the items presented as evidence of use were works within the meaning of the Copyright Act, and all were marked with the copyright no-tice, including the year of publication and own-ership of the economic rights; thus they were in a format that, under the provisions of the Copy-right Act, should be presumed to be authentic.
As the defendant and other participants in the litigation were unable to put forward evidence to rebut the publication date asserted by the plain-tiff, the judge accepted the plaintiff's assertion, and held that the year of trademark use asserted by the plaintiff was authentic.
With regard to the admissibility and force of evidence and the burden of proof in administra-tive litigation, the Code of Administrative Pro-cedure applies Article 277 of the Code of Civil Procedure mutatis mutandis. Thus when a party asserts facts advantageous to its own case, in principle the burden of proving such facts lies with that party. Article 13 of the Copyright Act is an exceptional provision that reverses the burden of proof, and the above case is the first time that it has been successfully relied upon in a trademark dispute.