Taiwan’s IP Court Ruled that Being Capable Of Practicing A Patent Before the Patent’s Filing Date Is Not Enough For One To Assert Prior Use Defense

In 2018, ALMECO GMBH (“ALMECO”), the German-based world leader in the production of aluminum components and laminates for the architectural, lighting, solar and decorative applications, sued Alanod-Xxentria Technology Materials Co. Ltd. (“Alanod-Xxentria”) and its local distributor in Taiwan’s IP Court, alleging infringement of ALMECO’s I589448 patent, titled “Temperature And Corrosion Stable Surface Reflector” (hereafter ‘448 patent).

ALMECO’s ‘448 patent mainly relates to a layer system comprising:

“a metal substrate on the face of which the following layers are applied in the specified sequence from the inside to the outside:

4) a layer made of a material selected from substoichiometric oxides and oxide nitrates of titanium and zirconium or from metals selected from titanium, zirconium, molybdenum, platinum, and chromium or an alloy using one of said metals or at least two of said metals,

5a) a layer made of a nickel alloy with chromium, aluminum, vanadium, molybdenum, cobalt, iron, titanium, and/or copper as the alloy partner or a metal selected from copper, aluminum, chromium, molybdenum, tungsten, tantalum, titanium, platinum, ruthenium, rhodium, and alloys using one said metals or at least two of said metals, or iron, steel, or stainless steel with the proviso that the layer can only consists of aluminum if the reflector layer 6) is made of aluminum and that in this case, the aluminum of the layer 5a) is sputtered,

6) an optically dense reflector layer made of a highly pure metal,

7) a layer selected from substoichiometric oxides of titanium, zirconium, hafnium, vanadium, tantalum, niobium, or chromium and from metals selected from chromium, titanium, zirconium, hafnium, vanadium, niobium, tantalum, tungsten, molybdenum, rhodium, and platinum and alloys using one of said metals or at least two of said metals,

9) a layer which has a lower refractive index (LI layer) than the directly adjoining layer 10) (HI layer), and

10) a layer which directly adjoins layer 9) and has a higher refractive index (HI layer) than layer 9) (LI layer).”

According to ALMECO, such a patented layer system can be used for example as a surface reflector, preferably in applications using LEDs, in particular MCCOB for LEDs, as a solar reflector, or as a laser mirror, in particular for color wheels in DLP laser projectors.

The IP Court ruled against ALMECO in the first instance, finding the asserted patent claims of ‘448 patent were obvious in view of the cited prior arts. ALMECO appealed, and the appellate panel of IP Court affirmed the finding of the lower court on May 21, 2020, rejecting ALMECO’s appeal. One of the key issues, which is also an issue that has rarely been touched upon in Taiwan’s patent litigation, is whether Alanod-Xxentria may assert prior use defense per Patent Law.

Article 59.1.3 of Patent Law provides that “The effects of an invention patent right shall not extend to the following circumstances:….3. acts done by a person who has been exploiting the invention or making all the necessary preparations for doing such act in this country before the filing date of the invention”. According to Alanod-Xxentria, before the priority date of ALMECO’s ‘448 patent, Alanod- Xxentria has already manufactured product that embodied ALMECO’s ‘448 patent. Based on its internal product document, Alanod- Xxentria alleged that a product with layered structure of TiO2, SiO2, CrOx, Ag, Cu, TiOx, and anodized aluminum, together with its manufacture process, has been disclosed. Thus, Alanod- Xxentria argued that it has been exploiting the same invention or making the necessary preparations for doing such act by manufacturing product that embodies the asserted patent.

However, the IP Court disagreed, finding that in the asserted patent, a single Ag-based reflector layer is adopted, but in its internal document, Alanod-Xxentria adopted double reflector layers made of Ag and Cu. In addition, according to its internal document, a Cr-based layer is adopted for the manufacturing process, while in the asserted patent, ALMECO adopted CrOx. Such differences disproved Alanod-Xxentria’s contention that it has been manufacturing product that embodies the asserted patent.

Although Alanod-Xxentria further argued that based on the relevant prior art references, a person of ordinary skills in the art would easily adjust the ratio of Cu and Ag and accomplish the patented Ag-based layer. However, the IP Court held that “being capable of manufacturing the patented product” does not equal to “practicing the patented invention” or “making necessary preparations for doing so.” For example, although a person is capable of manufacturing a patented product, such a person may still choose not to do so in view of the potential risk of patent infringement. Thus, the appellate panel of IP Court found Alanod-Xxentria’s submitted evidence insufficient to support its prior use defense.

Source: 108-Ming-Zhuan-Shang-Zi No. 24 (IP Court, May 21, 2020) https://law.judicial.gov.tw/FJUD/data.aspx?ty=JD&id=IPCV,108%2c%e6%b0%91%e5%b0%88%e4%b8%8a%2c24%2c20200521%2c4

“AgRICOLA” is found similar with the Swiss brand “RICOLA”

RICOLA GROUP AG (“RICOLA”), the worldwide famous expert in herb specialties, prevailed in opposition proceeding against “AgRICOLA” in Taiwan’s IP Office (“IPO”).

On August 2, 2017, Yen-Tai International Ltd. (“Yen Tai”) filed trademark application for “AgRICOLA”, designated for use in goods under Class 3 (e.g., cream, shampoo, facial cleansing, conditioner, etc.), Class 5 (e.g., nutrition supplement, baby food, herb tea supplements, etc.), and Class 30 (e.g., coffee, tea, candy, cookie, chocolate, etc.). Yen-Tai’s application was granted on May 1, 2018 (Reg. No. 01913141, see below). RICOLA filed opposition on July 31, 2018, citing violation of Articles 30.1.10, 30.1.11, and 30.1.12 of Taiwan’s Trademark Act.

IPO, after considering arguments and evidence submitted by both sides, found against Yen-Tai based on the following reasons:

1.     Article 30.1.11 of Trademark Act provides that a trademark shall be cancelled if such mark is confusingly similar with other’s famous mark that may cause confusion among the relevant public.

2.     “RICOLA” is originated from the combination of initials “Richterich & Co. Laufen”. The brand “RICOLA”, together with its unique throat lozenge mixed with the natural flavor of 13-herb mixture, has been widely popular in numerous countries in the markets of Europe, Asia, and the America continents for more than 50 years. RICOLA’s cited registered trademarks, including Reg. No. 00085233, 00151331, 00338936, 01208716, 01242891, 01552774, and 01734864, were registered in Taiwan dated back in as early as 1976, and its product is available in multiple sales channels including SOGO, PXMART, Carrefour, Costco, etc. Thus, “RICOLA” as a brand used in throat lozenge has become a well-known trademark in Taiwan.

 

3.     Yen-Tai’s “AgRICOLA” includes the same word “RICOLA”, with minor variations of “A” and “g”. Since “RICOLA” constitutes the major portion of Yen-Tai’s “AgRICOLA” trademark, an ordinary consumer would still find “RICOLA” the most distinctive part and develops stronger impression. Thus, the degree of similarity between “AgRICOLA” and “RICOLA” shall be as least medium.

4.     “RICOLA” has no ordinary meaning and thus is a highly distinctive trademark. Plus, after its continuous use and worldwide marketing, “RICOLA” has become so famous that consumers are more familiar with “RICOLA”.

5.     In addition to throat lozenge, IPO found that “RICOLA” has also been registered in other products under Class 5 and Class 30, such as herb tea, medicated candy, tea, medicated candy for soothing sore throat and coughing, etc. Thus, the IPO also took into consideration that “RICOLA” is registered in diversified products and may be used in different goods.

6.     Yen-Tai argued that there are other registered “agricola” trademarks, and that “argicola” is ordinary word, so “AgRICOLA” is distinguishable from “RICOLA.” However, the IPO noted that by particularly inserting “g” between “A” and “RICOLA”, Yen-Tai actually made “RICOLA” more noticeable in its registered “AgRICOLA” trademark. As such, Yen-Tai’s arguments are not persuasive.

Based on the above, the IPO found that Yen-Tai’s “AgRICOLA” is similar with the well-known trademark “RICOLA,” and that since the two trademarks are registered in similar goods, it is likely that an ordinary consumer will be confused and mistakenly believe that the two marks represent the same source of goods or that they are associated trademarks. Therefore, “AgRICOLA” shall be cancelled accordingly.

Source: https://twtmsearch.tipo.gov.tw/OS0/OS0401_SCN3.jsp?issueNo=XpJ13RyT4UDc5UStsM3psc0hKTVYrSURuM1lOZz09&l6=zh_TW&isReadBulletinen_US=&isReadBulletinzh_TW=true

Taiwan’s IP Office: Accor’s Hotel Brand “Novotel” Is A Well-Known Trademark

On July 30, 2018, a Mr. Liang filed application for trademark “NOVOTEL” for use in goods such as handbag, purse, briefcase, belt, etc. Mr. Liang’s application was granted on March 16, 2019 (Reg. No. 01975799, shown below). Accor filed opposition on June 14, 2019, and Taiwan’s IP Office (“IPO”) found for Accor.

Accor alleged that Mr. Liang’s trademark shall be cancelled due to violation of Articles 30.1.10, 30.1.11, and 30.1.12 of Trademark Act. More specifically, Accor stated that its registered trademarks for its Novotel Hotel, including the word mark “Novotel” (Reg. No. 00162720, shown below), are famous trademarks after years of service and marketing in Taiwan, and that Mr. Liang’s attempt to register a highly similar word mark is out of bad faith.

IPO found for Accor, determining that Mr. Liang’s trademark should be cancelled due to being identical with Accor’s famous trademark, and will cause confusion in the relevant public.

1.      Article 30.1.11 of Trademark Act provides that a trademark shall not be registered if being identical with or similar to another person’s well-known trademark or mark, and hence there exists a likelihood of confusion on the relevant public or a likelihood of dilution of the distinctiveness or reputation of the said well-known trademark or mark.

2.      With regard to Accor’s registered word mark “Novotel”, IPO noted that there is sufficient evidence, including continuous news reports, advertisements, magazines, and awards, supporting the finding of the well-known status of Accor’s “Novotel” trademark.

3.      After confirming Novotel as a famous trademark, the IPO went on to find that Mr. Liang’s opposed trademark is identical with Accor’s famous trademark. The similarity is too high that ordinary consumers may mistakenly believe that the two marks represent the same source of service or goods.

4.      Accor’s registered “Novotel” is unique and highly distinctive. According to the records, the IPO found that other than Mr. Liang and Accor, there is no one else registering the same word mark.

5.      Although Mr. Liang’s opposed trademark is used for goods such as purse, handbag, belt, leather goods, etc., the IPO was aware of Accor’s highly diversified business. For example, in its Novotel Hotel, Accor also provides fashionable goods like leather products for its customers. Thus, the goods designated by Mr. Liang’s opposed trademark may be considered relevant to the service provided under Accor’s Novotel trademark.

In view of the fact that Accor’s Novotel is a well-known trademark, that Mr. Liang’s trademark is highly similar with Accor’s trademark, and that there is likelihood of confusion caused by the similarity between the two trademarks, IPO sided with Accor and determined that Mr. Liang’s trademark shall be cancelled in accordance with Article 30.1.11 of Trademark Act.

Source: https://twtmsearch.tipo.gov.tw/OS0/OS0401_SCN3.jsp?issueNo=XpJ13RyT4bmUrRzgrMjliVGZCVnFRcEU2Wjh4UT09&l6=zh_TW&isReadBulletinen_US=&isReadBulletinzh_TW=true

Taiwan’s IP Office affirms “Tik Tok” as a well-known trademark

Bytedance Ltd. (“Bytedance”), the owner of registered “Tik Tok” trademark in Taiwan, filed opposition against another registered trademark (Reg. No. 02005514, see below) , alleging violation of Article 30.1.11 and 30.1.12 of Trademark Act.

The opposed trademark was filed on January 21, 2019, designated for use in internet auction, supermarket, department store, convenience store, shopping mall, online shopping, clothing, drink, and other retail service. The opposed trademark was granted on August 16, 2019. Bytedance filed opposition on November 14, 2019.

Taiwan’s IP Office (“IPO”), after considering the evidence and records submitted by Bytedance, determined the opposed trademark should be cancelled due to similar with other’s well-known trademark and may cause confusion among the relevant public.

1. Bytedance’s “Tik Tok” is a well-known trademark:

IPO, upon reviewing all the materials submitted by Bytedance, acknowledging that “Tik Tok” is a highly popular app that supports video-sharing network service. According to records, since 2016, the app has been downloaded and used by more than 500 million users in more than 50 countries around the world. Its short form video sharing service, together with the creative interface and social media platform, made “Tik Tok” so popular among the young generation. Although it was introduced to Taiwan in 2018, such popular app immediately became a hit and every month there are more than 3 million active users on the digital platform. Thus, when the opposed trademark was filed on January 21, 2019, Bytedance’s “Tik Tok” has become a well-known trademark in Taiwan.

2. The opposed trademark is highly similar with Bytedance’s registered trademark:

Both Bytedance’s “Tik Tok” trademark (Reg. No. 01980261, see below) and the opposed trademark share similar character “Tik Tok”. The musical note presented in the opposed trademark is also highly similar with Bytedance’s another registered trademark, which features its icon (Reg. No. 01982062, see below).

3. Bytedance’s “Tik Tok” trademark is highly distinctive:

“Tik Tok” has no specific meaning. Besides, Bytedance’s “Tik Tok” is designated for service such as software and app service, VPN service, internet data access service, live streaming service, Saas and ASP service, and cloud computing, which have no relation with the word “Tik Tok.” As such, “Tik Tok” is a trademark having high level of distinctiveness.

4. “Tik Tok” is also used in similar service:

Although the opposed trademark is used in retail service, Bytedance’s business is quite diversified. Plus, there is evidence showing Bytedance’s “Tik Tok” is also used in apparel and relevant merchandise. Further, both Bytedance’s “Tik Tok” and the opposed trademark (e.g., online shopping and retail) are designated for service concerning internet access. At a time when consumers are used to shopping online and purchasing products through internet transactions, these services are considered similar and correlated with each other.

Based on the above, the IPO found the opposed trademark should be cancelled due to similar with Bytedance’s well-known trademark, which may cause confusion amount the relevant consumers that there is license, collaboration, or other form of relationship between the owners of the two trademarks.

It is also worth noticing that Bytedance’s “Tik Tok” trademark was filed on May 31, 2018, which is only about 8 months earlier than the filing date of the opposed trademark. However, IPO still found “Tik Tok” was already a famous trademark in Taiwan at the time when the opposed trademark was filed. Thus, the decisive factor for gaining the status of a well-known trademark seemingly is not how long a trademark has been put in use, but how many records and materials have been submitted to prove the public’s recognition and popularity of a trademark.

Source: https://twtmsearch.tipo.gov.tw/OS0/OS0401_SCN3.jsp?issueNo=XpJ13RyT4cU1mSFRUTTR6bDR6dG5CWkJmQ1JQQT09&l6=zh_TW&isReadBulletinen_US=&isReadBulletinzh_TW=true

“APPLE TREE MOBILE SHOP” Was Found Similar With APPLE Inc.’s Trademark

Cell phone repairers better be careful.  When designing the trademark, repairer may like to highlight the brand of the smart phone his or her service covers. While it may help business, not every smart phone company would be happy to see its brand become part of other’s trademark, especially APPLE Inc.(“APPLE”)

On June 27, 2018, a local cell phone repairer filed trademark application for “APPLE TREE MOBILE SHOP (with drawing)”(Reg. No. 01972030, as shown below). Such trademark was granted on February 16, 2019, designated for service including cell phone or communication equipment repair or installation. APPLE filed opposition on May 14, 2019, and the Intellectual Property Office (“IPO”) rendered decision on April 7, 2020, finding the opposed trademark should be cancelled.

APPLE held the position that:

1. Its series trademarks, including the word mark “APPLE” (shown below), are famous trademarks. Since the opposed trademark has the same characters “APPLE”, the opposed trademark is highly similar with APPLE’s famous trademark.
2. The wrench presented in the opposed trademark features a smart phone drawing with APPLE’s famous “HOME BUTTON”, which is widely adopted in APPLE’s popular iPhone and iPad products. Such drawing may further lead the consumer to draw connection with APPLE’s famous products and trademark upon seeing the opposed trademark.
3. The service designated by the opposed trademark cover phone installation and repair, communication equipment installation and repair, internet setting, etc. They are relevant or similar with those designated by APPLE’s famous trademark, because APPLE’s products and services have been quite diversified. For example, APPLE’s word mark is also designated for service such as computer and hardware installation or repair.
4. Such high degree of similarity, plus the fame of APPLE’s trademark and similarity of service designated by the opposed trademark, enhance the inference that the application of the opposed trademark should be based on intent to imitate, and was not filed out of good faith.  

The owner of the opposed trademark replied that:

1.     In addition to the foreign language “APPLE TREE”, the opposed trademark further contains the drawing of a wrench. The overall appearance, and phonetic of the opposed trademark shall be different from those of APPLE’s.

2.     Consumer, when seeing the opposed trademark, would figure that the drawing features a wrench, rather than APPLE’s smart phone products.

3.     Besides, apple refers to a kind of fruit, which is not highly distinctive. Aside from APPLE, there are other registrants whose trademarks also contain this word. Thus, consumers should be quite familiar with such word mark and will be able to distinguish the opposed trademark from APPLE’s asserted trademark. In sum, consumers will not be confused simply because the two marks bear the same word “APPLE”.

The IPO found for APPLE, cancelling the opposed trademark on the ground of Article 30.1.11, which provides that a trademark shall not be registered if such mark is identical to or similar with other famous mark so that it may cause confusion to the relevant public or damage the distinctiveness or reputation of the famous mark.

1. “APPLE” is a famous trademark:

To this end, IPO finds that there are voluminous records supporting APPLE’s assertion. APPLE registered its trademark since as early as 1977, and used “APPLE” and “APPLE LOGO” as trademarks on computer product and its related accessories. Over time, the products or services covered by these trademarks have expanded to cover software, internet, multi-media products, education service, clothing, and stationary. The successful delivery of service and products such as “iTunes”, “iPod”, “iPhone”, and “iPad” further help APPLE becomes one of the greatest global brands.

2. The opposed trademark is similar with APPLE’s famous trademark:

The opposed trademark presents similar word mark “APPLE”. Although there are other elements, such as “MOBILE SHOP”, a wrench featuring a cell phone inside, and the word “Tree”, these additional elements are not distinctive. The most appealing portion is still the word “APPLE”, which is identical to APPLE’s famous word mark. Further, in the wrench, there is a drawing of cell phone featuring APPLE’s famous “home button”, which gives the impression that the mark has something to do with repairing APPLE’s products. Conceptually, the opposed trademark is similar with APPLE’s famous work mark.  

3.     The strength of APPLE’s trademark:

Although the word “apple” refers to ordinary fruit, such word has no bearing with and does not describe the nature of the goods or service the word mark is designated to use. Thus, consumers would immediately recognize “APPLE” as the identifier of source of the goods or service. Plus, APPLE has been using the word mark for more than 40 years. Even if the degree of similarity is low, ordinary consumers would immediately think of APPLE’s famous trademark upon seeing the opposed trademark.

4. The knowledge of the relevant consumers to the opposed trademark:

While APPLE has submitted sufficient records supporting the finding of famous trademark, the evidence the owner of the opposed trademark provided was not enough. There was no record with respect to the market share, sales, and revenue in association with the goods or service using the opposed trademark. Although the owner of the opposed trademark submitted some evidence of trademark use, such as Facebook fan pages and Google search results, these materials either were generated after the application date of the opposed trademark, or have no date at all. Thus, IPO could not find the opposed trademark was well-known among the relevant consumers when it was filed for registration.

4.     The registration of the opposed trademark is not based on good faith:

Considering the well-known status of APPLE’s trademarks, and the design of the opposed trademark that may easily make ordinary consumers think of APPLE’s goods or service, the IPO found the opposed trademark probably was not registered out of good faith.

Based on the above, the IPO sided with APPLE, determining that the opposed trademark is similar with APPLE’s famous trademark, which may confuse and mislead the relevant consumers into believing that there is license, partnership, or other form of contractual relationship between the owner of the opposed trademark and APPLE. Thus, the opposed trademark should be cancelled.

Source: https://twtmsearch.tipo.gov.tw/OS0/OS0401_SCN3.jsp?issueNo=XpJ13RyT4cE5mQW9ybys0VHJ4Szdyd1JzbW5rZz09&l6=zh_TW&isReadBulletinen_US=&isReadBulletinzh_TW=true

IP Court Found LED Chip Supplier Liable to Indemnify, Ruling Duty To Indemnify Is Not Conditioned Upon Judicial Finding Of Patent Infringement

Tong Fang Semiconductor (HK) Co., Ltd. (“Tong Fang”) sued Unity Opto Technology, Ltd. (“Unity”) in Taiwan, alleging overdue payment (US$ 1, 102, 195.57) for the LED chips Tong Fang supplied to Unity. In response, Unity argued that the LED chips provided by Tong Fang infringed third party’s U.S. patents[1], which rendered Unity subject to potential patent infringement liability in the United States[2]. Unity therefore stated that according to the “Intellectual Property Guarantee Letter” (“Letter”) provided by Tong Fang, Tong Fang should be responsible for costs Unity incurred due to the infringement lawsuit. Since Unity paid US$ 1,122,073.35 for the U.S. lawsuit, Unity is entitled to offset the legal fees it paid (i.e., US$ 1,122,073.35) against the payment it allegedly owed to Tong Fang (i.e., US$ 1, 102, 195.57). Thus, Unity argued that Tong Fang is not entitled to the overdue payment.

Since the two parties did not dispute the amount of the overdue payment, the key issue is whether Unity is entitled to hold Tong Fang responsible for the legal fee Unity incurred arising out of the LED chips Tong Fang supplied.

The relevant clauses prepared by Tong Fang in the Letter are as follows:

“We (i.e., Tong Fang) warrant that all Chip products manufactured and/or sold to Unity do not infringe or misappropriate any Intellectual Property Rights, including without limitation,  patent, copyright, trade secret, industrial design, know-how, trademark of any third parties in design, construction, manufacture or use of the Products.

We will defend, indemnify and hold harmless Unity, its agents, directors, officers, employees, affiliates and customers, from and against any asserted claims, suits, injunctions, demands, actions, expenses, losses or damages（including, without limitation, shipping costs, repackaging fees, recalls, handling fees, losses of product distribution, custom tariff, tax, fines, field return expenses and/or attorney fees）arising from or related to we do not comply with the warranty and representation hereinabove in any manner .

We will, at our own cost and expense, select necessary manner to let Unity, its affiliates and/or customers continue to use the Products legally and legitimately…”

Tong Fang argued that the Letter is not applicable because there is no final court’s decision on issue of infringement. In other words, the applicability of Tong Fang’s obligation to indemnify should be conditioned upon a final court’s decision that finds infringement. The IP Court judge disagreed, holding that:

1.     The terms used in the Letter, such as asserted claims, demands, actions, etc., all refer to matters that are not necessarily involving a final court decision. Thus, the literal interpretation of the cited clause suggests that a final determination of infringement by the court is not the premise of Tong Fang’s duty to indemnify.

2.     Besides, Unity required this Letter from Tong Fang because Unity had to manage the legal risk and damages accompanied with the LED chips Tong Fang supplied. Since patent litigation is notorious for its high cost and lengthy procedure, before a court enters its final decision on infringement, there would be considerable costs and expenses incurred. It would be against the purpose of the Letter to construe Tong Fang’s duty to indemnify be premised on a final judicial finding of infringement.

3.     Further, it would be unfair to adopt Tong Fang’s proposed interpretation. Since Tong Fang is the supplier of the accused LED Chip, Tong Fang, compared with Unity, is in a better position to defend patent infringement lawsuit. However, under Tong Fang’s theory, not only will Unity be unable to ask Tong Fang to help defend the infringement lawsuit at the outset of the litigation, Tong Fang may still refuse to compensate Unity when, in the end, Unity obtains a final judicial finding of non-infringement for Tong Fang’s chips.

In view of the above, the IP Court found Tong Fang should indemnify Unity for the costs Unity incurred due to the patent infringement lawsuit. Since the costs Tong Fang should indemnify is higher than the payment it demanded from Unity, after offsetting Unity’s alleged costs from Tong Fang’s demanded payment, there is no need for Unity to pay Tong Fang. As such, the IP Court rejected Tong Fang’s claim accordingly.

TIP: While indemnity clause is helpful in managing and balancing the legal risk between the seller and buyer, it is critical to make sure the circumstance intended to be covered by the indemnity clause should be as clear and definite as possible.

Source:

智慧財產法院民事判決108年度民專上字第30號

https://bit.ly/3d5wKBO

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[1] The patents are: US 6,657,236; US 6,885,036; US 6,614,056; US 7,312,474; US 7,976,187; US 8,766,298; US 8,596,819; US 8,628,214; US D653,366; D660,990

[2] The title of the case is: Cree, Inc. v. Feit Electric Company, Inc. et al.

住戶在其屋內裝設監視器，拍攝其屋前之空間，未針對其他人拍攝，不會侵害該他人的隱私權

本案的兩位當事人都住在桃園的玉山官邸社區，因為被告在他房屋1樓面向中庭及社區大門的窗台架設監視器，且鏡頭對準中庭、社區大門及原告住所門外及通道等活動空間，導致原告親友進出社區大門或是在中庭交誼互動時都會遭被告所架設的監視器拍攝，原告因此依民法第18條第1、2項、第184條第1項前段、第195條第1項規定，請求被告拆除監視器、禁止架設拍攝公共空間的監視器並請求被告賠償精神慰撫金新臺幣60萬元

法院判決：

1.      隱私是指個人對他私領域的自主權利，保護範圍包括個人私生活不受干擾以及個人資訊的自我控制，但是人群共處經營社會生活，應受保護的隱私必須有所界限，也就是隱私是否存在，應該以個人對這個事物是否有合理期待作為判斷準則。所謂合理的期待，是指個人可以主張不受侵擾的自由，要以可以合理期待於他人者為限，也就是不僅他不受侵擾的期待已經表現在外，而且這個期待必須依社會通念認為是合理的。

2.      本件被告在他屋內的窗台處架設監視器，拍攝他房屋前面的空間，若調整監視器的角度，則除了可以拍攝到被告房屋前面的花圃以及中庭空間外，還可以拍攝到原告門口盆栽區域，但是經查看這個監視器的錄影擷圖，可以發現這個監視器的拍攝角度主要還是針對被告房屋前面的空間，而不是對準他人住宅門口。

3.      其次，玉山官邸社區的區分所有權人會議雖然決議：住戶不得對共同走道或共用中庭處所裝置供私人使用的錄影(音)設備，但是因為這個社區都是透天屋，各戶的正面都有落地窗，住戶透過落地窗就能觀看中庭活動，而且此中庭及社區大門，並不像有管制的公寓大廈2樓以上電梯間，可以特定出入人士為各層樓住戶以及他們的訪客，所以此中庭及社區大門並非私人空間。

4.       再者，這個社區的中庭是住戶的公共空間，與中庭連接的社區大門是對外鏤空的門扇，因此，住戶可以在屋內由門窗往中庭看，或在社區大門內經過中庭的人，或是在社區大門外的人，都可以看見人員進出中庭或是社區大門的情形，並無隱密性可言，因此住戶或訪客在中庭活動或進出社區大門，應該認知到可能會給不特定人知悉，所以依社會通念，很難認為會有隱私權的合理期待。

5.       因此，被告為了防盜、保障生命財產安全以及蒐集訴訟證據，而在他自己的房屋內設置監視器，拍攝他房屋前面的空間及中庭，並未針對原告拍攝，且被告實際上僅在他與原告或管委會的訴訟上使用這些拍攝的資料，並未散布、公開或為非正當目的之使用，並未侵害原告的隱私權，因此原告依民法第18條第1、2項、第184條第1項前段、第195條第1項規定，請求被告拆除監視器、禁止架設拍攝公共空間的監視器並請求被告賠償精神慰撫金，為無理由。

資料來源：臺灣高等法院108年度上字第1007號民事判決（https://law.judicial.gov.tw/FJUD/default.aspx）