Marking or notice of trademark registration in Japanese practice

July 09, 2012

"Patent" ,"pat.", "特許取得済み (patented)" "意匠登録済み (design registered)"  (sometimes together with the number of the patent), the letter R enclosed within a circle or "商標登録済み" (trademark registered)" (sometimes together with the number of the registered trademark) that are displayed on labels or packages of products, or on products themselves are familiar with Japanese customers.

No requirements by laws and regulations

Unlike IP Laws in some countries, marking or notice of patent/registration is merely encouraged in Japanese Patent Law, Utility Model Law, Design Law and Trademark Law. That is, owners of industrial property rights do not have a legal obligation to give notice to the public that their products are patented or their marks are registered before filing an infringement suit. 

However, marking or notice of patent/registration on distributed products in the market is effective as a preliminary warning to appeal that they are patented or their marks are registered.

False marking

The regulations under IP laws provide instructions on how to mark:
 - Product patent : "特許 + the number of patent"
 - Process patent : "方法特許 + the number of patent"
 - Registered utility model : "登録実用新案 + the registration number"
 - Registered design : "登録意匠" + the registration number
 - Registered trademark :"登録商標 + the registration number/the international registration number"

False marking is prohibited under Japanese Laws. A person commits a crime of false marking shall be punished by imprisonment with work or a fine.

However, there is no clarification regarding whether marking or notice that does not comply with the above instructions by the regulations is "false marking" or not. Actually, the marks "pat." , "特許取得済み", the letter R enclosed within a circle and "商標登録済み" in particular are almost conventional in the Japanese market. Therefore, these marks may not be "false marking" as long as they are used for patented products or registered trademarks authorized by the JPO.

In contrast, these marks that are used for imported products which has been patented in other countries but not in Japan,  or of which trademarks have been registered in other countries but not in Japan, may be "false markings".  Therefore, it would be better and safer to mark like "U.S.Pat" that can be obviously recognized as  patented or registered in other countries.

End of report

AIGI Intellectual Property Law Firm

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