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It has long been a controversial issue whether trademark or copyright infringement in China can be governed by the Trademark Act, the Copyright Act or other intellectual property legislation of Taiwan. Those who take the negative view opine that although Mainland China should be part of territory of Taiwan (Republic of China, ROC) by law, in fact Mainland China has its own legal system, and the sovereignty of Taiwan (Republic of China, ROC) does not extend to the Mainland China; therefore, the validity of the intellectual property rights conferred by the IP legislation of Taiwan (Republic of China, ROC) cannot extend to Mainland China. Those who take the positive view maintain that as Mainland China is legally part of the territory of Taiwan (Republic of China, ROC), despite the practical difficulties that currently prevent Taiwan (Republic of China, ROC) from exercising its sovereignty there, crimes committed in Mainland China are nonetheless subject to penalties under the laws of Taiwan (Republic of China, ROC).
The Supreme Court took the view on a fraud case in 2001 that the Constitution, the Additional Provisions of the Constitution, and the Act Governing Relations between the Peoples of the Taiwan Area and the Mainland Area clearly indicate that Mainland China remains part of the territory of Taiwan (Republic of China, ROC), and Taiwan (Republic of China, ROC) has not relinquished its sovereignty there. The court therefore held that although practical difficulties currently prevent Taiwan (Republic of China, ROC) from exercising its sovereignty over the Mainland China, crimes committed in Mainland China are nonetheless subject to penalties under the laws of Taiwan (Republic of China, ROC).
The Ministry of Justice expressed the same view in a legal interpretation issued on 16 July 2003 that where a work protected under the Copyright Act of Taiwan was reproduced in Mainland China and sold only there, the infringers were still liable to penalties under the Copyright Act of Taiwan.
The Supreme Court reiterated on a copyright infringement case in 2011 that Mainland China still remains part of the territory of Taiwan (Republic of China, ROC).
Despite of the opinions of the Supreme Court and the Ministry of Justice, it remains to be seen whether it is possible in practice for trademark infringements be prosecuted and penalized under the Copyright Act of Taiwan.
