Article 30 paragraph 1 subparagraph 1 of the Trademark Act, amended and promulgated on May 28, 2003, stipulates that “one who, through means of bona fide and fair use, expresses the same one's name, title, or the name, shape, quality, function, place of origin, or other description with respect to the goods or services provided by the same one for non-trademark purposes shall be free from the capacity of trademark rights of another.” The term “bona fide” means that one doesn’t know that his expression has infringed another’s trademark. “Bona fide” relates to intent of engaging in unfair competition rather than knowing another’s trademark or not.

The degree of a trademark‘s distinctiveness and fair use are in inverse proportion. “Fair use” means that using a trademark in commercial channels in a normal way, without the intent of use as a trademark, and relevant consumers do not consider the use as a trademark. And article 30 paragraph 1 subparagraph 3 of the Trademark Act, amended and promulgated on May 28, 2003, stipulates that “where, prior to the filing date of a registered trademark, a person has been using bona fide an identical or similar trademark designating on the identical or similar goods or services. However, the aforementioned is only applicable to those goods or services on which such trademark has already been in use; the trademark right holder of the said registered trademark may request the said person to attach appropriate and distinguishable label(s).” The purpose of this article is to balance interests of the parties and to remedy the deficiency of "first-to-file" trademark system, and to harmonize with the “first-to-use” system.

Therefore, the trademark registered later will not bind the one who claims prior bona fide use, if the bona fide user has been using the identical or similar trademark designating on the identical or similar goods or services, prior to the filing date of the registered trademark, without the intent of engaging in unfair competition. The trademark right holder can request the bona fide user to attach appropriate and distinguishable label(s) according to actual trade practices.

Fair use, Using bona fide, Using bona fide, Prior to the filing date of the registered trademark, Trademark infringement, Distinctiveness