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Commercial Use of Building Image of Taipei 101 Without Authorization Constitutes Infringement? TIPO: The Image of Taipei 101 on Photos and Post Cards Is within the Scope of Fair Use
E060214Y2 Mar. 2006（E76）
The granting of 3D trademark right for the world highest skyscraper, Taipei 101 has triggered a wide variety of opinions.Where the building is only used as a background of real estate advertisement without authorization, advertisement is shot in front of Taipei 101, or people take photos of Taipei 101 and put them onto post cards, are these acts infringing the trademark right and copyright of Taipei Financial Center Corp (TFCC), which holds the ownership of Taipei 101 ?TIPO indicated that the above-listed acts are all within the scope of “fair use” and thus would not constitute trademark infringement.
Since the beginning of three dimensional trademark recognition in Taiwan in 2003, the building image of “Taipei 101” is the first 3D trademark approved for trademark registration.TIPO approved of the trademark registration of Taipei 101 building because the extensive coverage of Taipei 101 in newspapers and magazines has made the building image well known to the public and distinctive.
The 3D trademark of Taipei 101 has been designated to be used on toy products.In this regard, one is likely to infringe upon the trademark right for Taipei 101 if he/she manufactures and sells the toys identical or similar to that bearing the image of Taipei 101 without the trademark right holder’s consent and thus causes the consumers’ confusion that such products are manufactured by TFCC or with TFCC’s consent.
Likewise, for using Taipei 101 in the real estate advertisement, if the building image is used for trademark purpose, and misleads the general public to believe that the trademark owner of Taipei 101 is the seller of the real estate, such use is likely to infringe upon the trademark right.However, where the building is only used as a background of the advertisement as the common practice of real estate advertising so as to demonstrate the nearby surrounding of the real estate to be sold, it may fall into the scope of bona fide and fair use under the Trademark Law and thus shall not be subject to the trademark right.
In addition, according to the Copyright Law in Taiwan, “an architectural structure” is also a kind of work protected by the Copyright Law, while the scope of fair use of an architectural structure is quite extensive in consideration of public welfare.The well-known building image (including that of Taipei 101) which is used onto souvenir, photos, post cards, paper carving or posters, and drama as background falls into the scope of “fair use”.(2006.02)
