1.In normal conditions, selling means the seller of a thing delivers the thing to the buyer and makes him acquire its ownership (See Article 345 Paragraph 1, Article 348 Paragraph 1, and Article 761 of the Civil Code). If the object has not been delivered to the buyer, the selling action is not complete. As far as the crime of trafficking is concerned, only when the seller delivers and transfers the ownership of the thing to the buyer, the offense is completed due to the accomplishment of the elements of crime. If the offender only purchases the object with an intent to sell but has not transferred it to the buyer, then his action should be considered as the commission instead of the consummation of the crime in general sense. That is, whether the selling action is commissioned or consummated depends on the delivery of the thing. (See Supreme Court criminal decision No. 2012-Tai-Shang-5830).

2.The Trademark Act is amended and enforced on July 1, 2012. Before the amendment, Article 82 stated that “Any person who knowingly sells or, due to an intent to sell, possesses, displays, exports, or imports another person's goods referred to in the preceding article shall be liable to imprisonment for a period not exceeding one year and/or a fine not exceeding NT$50,000.” After the amendment, Article 82 becomes Article 97 and states that “Any person who knowingly sells or, due to an intent to sell, possesses, displays, exports, or imports another person's goods referred to in the preceding two articles shall be liable to imprisonment for a period not exceeding one year and/or a fine not exceeding NT$50,000; same penalties shall also apply to acts performed through electronic media or on the Internet.” The legally-prescribed punishment remained the same, but what is targeted in Article 97 of the Trademark Act after amendment is an offender whose illegal act is not included in Article 95 and Article 96. The reason for the amendment states, “For those who knowingly buys goods that infringe another’s trademark but the original reason of purchasing is not to profit (e.g., for his own use), although the offender later changes his mind to sell and to profit from the counterfeit goods, this behavior is not included in the range of the current article’s elements of “sells or, due to an intent to sell, displays, exports, or imports.” However, in order to prevent the infringing goods from being putting on the market and thus infringing the right of the proprietor of a registered trademark, it is necessary to punish the offender’s behavior. Therefore, the person who “possesses” the infringing goods with an intent to sell has been added to be the object of the punishment.” (See the amending reason of the Trademark Act Article 97 Paragraph 2.)

3.The Trademark Act punishes those who knowingly sells and those who possesses counterfeit goods with an intent to sell. Since the actor’s purpose of possessing counterfeit goods is to sell, it doesn’t matter whether the original purpose of possessing is to profit or not (e.g., as a done of a gift). As long as the actor has an intent to sell and continues possessing, he has fallen into the range of the crime due to possession of counterfeit goods with an intent to sell.

4.In this case, the defendant confessed that he bought the counterfeit T-shirts due to an intent to sell, but there is no evidence to show that the defendant has transferred the T-shirts to buyers. Based on the previous statement, the action of selling has not completed. Since the Trademark Act imposes penalties on those who knowingly sells and those who possesses counterfeit goods with an intent to sell, and the defendant had confessed that he bought the counterfeit T-shirts with an intent to sell, it is clear that the defendant’s purpose is to sell the goods. Therefore, whatever his original purpose is, his behavior has committed the crime of possessing counterfeit goods with an intent to sell. As a result, the defendant should be punished by his behavior of possessing counterfeit goods with an intent to sell. It is inappropriate for the prosecutor to prosecute the defendant’s behavior for the crime of selling goods with a counterfeit trademark. Nonetheless, to knowingly sell and to possess counterfeit goods with an intent to sell are the same crime in essence and are stipulated in the same article, there is no need to change the article cited by the prosecutor accordingly.

Possession with an intent to sell、goods with counterfeit trademarks