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Capital Markets

Taiwan

The Financial Supervisory Commission of the Executive Yuan has announced new Rules on the Establishment of a Remuneration Committee by a Company whose Stocks are Listed on the Stock Exchange or Traded Over-the-Counter and a Remuneration Committee's Functions and Duties. According to the new rules, a listed company must establish a remuneration committee which will conduct regular reviews to determine the remuneration of its directors, supervisors and managers.

The Taiwan Securities Association (TSA) has promulgated a new regulation under Paragraph 4, Article 24 of the Regulations Governing Underwriting or Re-Sale of Securities by Underwriters, which requires a lead underwriter to provide the TSA with an evaluation report detailing any irregularities in the stock prices of the underlying shares of Taiwan depositary receipts.

Recently, the market price of certain Taiwan depositary receipts (TDRs) dropped and stayed below their listing prices for an extended period. In response to an appeal from the TDR issuers, the Taiwan Stock Exchange Corporation promulgated the Taiwan Stock Exchange Corporation Rules Governing the Secondary Listed Company's Repurchase of TDRs. The new rules permit TDR issuers to repurchase their outstanding TDRs.

The Executive Yuan has passed amendments to the Securities and Exchange Act. This update highlights the most significant of these amendments, including the introduction of a new chapter on foreign companies, amendments regarding elements of intent and a new insider trading exemption.

Company & Commercial

Taiwan

In a recent case, the Taipei District Court held that once a commodity barcode has been read through a computer, it is equivalent to a trade name. Further, given that commodity barcodes are symbols which are applied to articles and can serve as proof in business practice or a contract, they are deemed to be quasi-private documents.

Corporate Finance/M&A

Taiwan

Japan's Interchange Association and Taiwan's Association of East Asian Relations has executed the Agreement between the Interchange Association and Association of East Asian Relations for the Mutual Cooperation on the Liberalisation, Promotion and Protection of Investment. The agreement includes a number of provisions that will facilitate mutual investment between the countries.

Cross-strait trade relations have steadily improved since the signing of the Economic Cooperation Framework Agreement. Taking the next step in Taiwan's continuing efforts to promote cross-strait industry partnerships and to attract more mainland investors, the Ministry of Economic Affairs recently announced that several new industry categories will be opened to Chinese investment.

In order to further liberalise the regulatory framework for M&A activities, the Ministry of Economic Affairs plans to propose certain amendments to the Mergers and Acquisitions Act. The proposed amendments cover consideration in spin-offs, amortisation of intangible assets and tax exemption.

Insurance & Reinsurance

Taiwan

Taiwan and China have signed the Cross-Strait Economic Cooperation Framework Agreement and the Cross-Strait Intellectual Property Right Protection Cooperation Agreement. In connection with the early harvest lists and the liberalisation of trade rules under the new trade pact, China will allow Taiwanese insurance groups to enter the Chinese market by way of merger or strategic alliance if they satisfy certain conditions.

Intellectual Property

Taiwan

The owner of a registered trademark is entitled to demand that a third party which infringes or is likely to infringe its trademark rights must cease or prevent such infringement. With respect to the right to claim damages, the Trademark Act explicitly restricts the time limit in which such legal proceedings may be brought. However, there is no time limit for injunctions against trademark infringement.

According to the Examination Guidelines on the Likelihood of Confusion, when evaluating whether two trademarks are likely to cause confusion the examiners in charge should, among other things, consider the strength of distinctiveness of the trademarks. With respect to circumstances of actual confusion, the party concerned may present a market survey as supporting evidence.

According to the Code of Criminal Procedure, if in criminal proceedings the court finds the defendant not guilty, then the court should transfer the civil action to the civil division of a court for trial. However, according to the IP Case Adjudication Act, when a defendant is found not guilty, the civil claim should be directly rejected without transferring it to the civil division of the court.

Awareness of IP rights protection has been rising in recent years. Rights holders and importers, exporters, manufacturers or sellers of various products should pay close attention to changes in customs border measures and institute appropriate internal guidelines for potential scenarios.

Although the IP Case Adjudication Act grants civil courts the power to judge patent validity of their own accord, it is silent on how to handle the application of claim amendment. The IP Court has been inconsistent in its dealings with the application of patent claim amendment. An examination of recent IP Court judgments highlights several different approaches that it has taken in this area.

The new Trademark Act involves changes to several systems, including expansion of the scope of protection for non-conventional trademarks. As non-conventional trademarks may now be entitled to protection under the Trademark Act, rights holders should evaluate whether their trademarks would qualify for such protection and, if so, file applications accordingly.

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