Taiwan government recently announced that amendments to the confiscation provisions of Article 98 under Trademark Act, Article 98 under Copyright Act, and Articles 15, 17 under Optical Disk Management Act were promulgated on November 30, 2016 by Presidential Decree. Also, Article 98 under Trademark Act was effective from December 15, 2016.
These amendments were made in accordance with Criminal Code which was amended and promulgated on December 30, 2015 and enforced on July 1, 2016. Before the amendments on the Criminal Code, confiscation was served as an accessory punishment to be pronounced together with a principal punishment by the court for a criminal offense. Confiscation is now imposed as a principal punishment and its related provisions are stipulated in Confiscation Chapter under the revised Criminal Code. In addition, those other provisions relating to confiscation, levy, demanding payment and compensation under relevant laws are no longer applicable upon the enforcement of the revised Criminal Code.
However since it is required to prove that the counterfeit goods are provided to or obtained by the offender without good cause for the Court to make a confiscation order, it could be difficult for the competent authorities to conduct investigation and crackdown on counterfeit goods. In order to prevent the suspected infringing goods from being dispersed into the market due to failure of implementing confiscation by custom seizure, the confiscation provisions in the relevant IP laws have been reintroduced based on the principle that special law shall prevail the common law, and thus in fact only minor revisions on the confiscation provisions have been made so that they could conform with the wording usage in the prevailing Criminal Code. In Taiwan, absolute confiscation is adopted on the infringing goods or documents, while the pirated disks or their manufacture machines are liable for ex officio confiscation.
