Taiwan TTL’s Trademark for Beer Products Held Distinctive

Taiwan Tobacco & Liquor Corporation (“TTL”) has successfully registered the mark “台灣の青啤and device” for its beer products (hereinafter the “disputed mark”) with Taiwan IPO, but Taiwan Tsing Beer Co. Ltd. (“TTBC”) filed an opposition challenging TTL’s above successful registration on the ground that the disputed mark is not distinctive.  TTBC’s opposition turned out unsuccessful, against which TTBC filed an administrative appeal and further initiated an administrative lawsuit but the appeal and lawsuit were all dismissed.  TTBC thus brought this matter to the Supreme Administrative Court.

According to TTBC, the disputed mark as a whole forms an idea of “fresh Taiwanese unpasteurized beer” and is not distinctive on the reasons that (1) the Chinese characters “台灣の青啤” (literally meaning “Taiwanese unpasteurized beer”) and the English word “Fresh” of the disputed mark are simply descriptions with respect to the content and quality of the product labeled with the disputed mark, (2) the two pictorial ears of wheat thereof are also descriptive in regard to the ingredients of the product labeled with the disputed mark, and (3) the Taiwan map device is to correspond to the Chinese characters “台灣の青啤”. 

The Taiwan IP Court examined this case and rendered a judgment.  According to the IP Court judgment, the disputed mark is a combination of the Chinese characters “台灣の青啤”, the English word, “FRESH”, and a Taiwan map device with two pictorial ears of wheat and all these elements are vertically aligned in a shield-shaped device.  These elements, the Chinese characters “台灣の青啤”, English word, “FRESH”, and a Taiwan map device, are not distinctive because they carry the literal meaning of “Taiwanese unpasteurized beer” and “fresh” and represents Taiwan, while the shield-shaped device and the pictorial ears of wheat form the distinctive elements of the disputed mark.  However, any mark should be examined and viewed as a whole (including the element subject to disclaimer of exclusive use) to decide the existence and nonexistence of distinctiveness, and any mark will be deemed distinctive if and only if the mark as a whole is able to cause consumers to recognize it as a mark that designates and differentiates a specific source.  In this case, the disputed mark does not consist of descriptive words and devices nor indistinctive logos; instead, the composition thereof as a whole is distinctive enough and thus should not be held in violation of the Taiwan Trademark Act.

The Supreme Administrative Court affirms the above IP Court’s reasoning to determine that the disputed mark is not indistinctive and therefore the registration thereof should not be canceled.  The Supreme Administrative Court’ makes a final ruling in favor of TTL with binding effects.  (August 2015)
/CCS