Articles 8 and 15 of the Constitution expressly guarantee the physical freedom and property rights of a citizen. Nevertheless, where the State imposes criminal sanctions on specific acts that pose a threat to the society and thus restrict the physical freedom and property rights of a citizen in accordance with legally prescribed requirements and consequences, such sanctions may not be considered as in conflict with the provisions of Articles 8 and 15 of the Constitution unless they are contrary to the purport of Article 23 of the Constitution. The foregoing has been made clear by J.Y. Interpretations Nos. 476 and 551.
Furthermore, the lawmakers, in proposing various rules and systems, may properly use an indefinite legal concept in legislation after measuring and considering the complexities of the social life and the facts surrounding it that the law intends to regulate, as well as the appropriateness of its application to any specific case. The principle of clarity and definiteness of law is not violated if the meaning of a legal provision is not difficult to comprehend from the viewpoints of legislative purpose and the relevance of the legal systems as a whole, if an average person may ascertain whether a specific set of facts is subject to the law at issue, and if the concept may be determined and judged through judicial review. This Court has repeatedly elaborated on the foregoing in J.Y. Interpretations Nos. 432 and 521.
As a trademark right is a property right, it should be protected under Article 15 of the Constitution. In addition, the registration and protection of trademarks or other protected marks can simultaneously identify the source of the goods or services as distinguished by the trademark or other marks so as to protect the interests of consumers and maintain the orderly operation of the free market. The foregoing is made clear by Article 1 of the Trademark Act as amended and promulgated on December 22, 1993, which provides, “This Act is enacted to safeguard the right to the exclusive use of trademark and consumers* interest so as to facilitate the normal development of industries and commerce.”
For the purpose of achieving the aforesaid constitutional objectives of protecting property rights and public interests, Article 77 of the Trademark Act, designed to protect service marks, has applied mutatis mutandis Article 62 (ii) thereof, which states, “Any person who, with the intent to deceive others, affixes a mark that is identical or similar to a registered trademark or logo of another person to advertisements, labels, brochures, price lists or other instruments regarding the same or similar goods, and displays or distributes the same, shall be punishable by imprisonment of no more than three years, detention, and, in addition thereto or in lieu thereof, a fine of no more than NT$200,000.” The said provisions were indeed justifiably intended to protect a person’s rights as to his or her registered trademark or other protected marks, and to prevent the general consumer from suffering damages resulting from confusion or mistake as to the source or quality of the goods or services. In addition, as far as this matter is concerned, the legislature has considered the fact that the infringement of trademarks or other protected marks will pose great danger to the citizen’s property rights, the consumer’s interests, the economic order embodied in fair competition, as well as the development of industries and commerce. It is to this aim that the lawmakers have decided to impose criminal sanctions on those who intend to deceive others. Furthermore, having considered the magnitude and modes of the infringement of such legally recognized and protected interests, the legislature has chosen to employ such penalties as the restrictions of one’s property or physical freedom to supplement the inadequacies of Article 253 of the Criminal Code, which deals with the forgery or copying of trademarks or trade names. As such, it remains within the boundary of necessity and thus is not inconsistent with Article 23 of the Constitution, nor is it contrary to the purports of Articles 8 and 15 thereof, which guarantee the physical freedom and property rights of a citizen.
In respect of the acts prohibited under the aforesaid law, these should be determined by determining whether the trademark or other mark affixed by an alleged infringer is identical or similar to another’s registered trademark or other mark and whether the relevant consumers, after using normal care, are likely to be confused or mistaken, which should be sufficient to determine the scope thereof. From the standpoint of a reasonably prudent person that the law intends to protect, the scope thereof should be foreseeable after he or she exercises normal care. Therefore, the provision at issue does not run afoul of the principle of clarity and definiteness of elements as embodied in the principle of “No crime and no punishment without a law,” which satisfies the requirements of the principle of clarity and definiteness of law under a constitutional state. Having said the above, it should also be noted that it is at the lawmakers’ discretion to decide whether no criminal sanctions will be imposed unless and until an alleged infringer continues or repeats the infringing act after an initial decision is made or some administrative control is exercised in respect of a particular case through administrative procedure.
*Translated by Vincent C. Kuan.