Newsletter
Points for Attention in Health Labeling and its Trademark Application
I. Introduction
To improve the health and safety of people's diet, the Taiwan Food and Drug Administration of the Ministry of Health and Welfare (hereinafter referred to as the "TFDA") has implemented five new food-related measures1 from July 1st, 2022 (being subject to the production date), one of which is a stipulation that the word "health" shall not be labeled for those who have not been registered and obtained the "health food" license. In fact, in addition to printing the product name, contents information, and other labels on the outer packaging for "health food", which involves regulations of food labeling and registration, at the same time, for the purpose of marketing, trademarks are printed, which is related to the trademark application examination practice under the Trademark Act. In order to enable the health food businesses to take both into account, this article will briefly introduce the latest regulations and practice on health food labeling and its trademark application.
II. The Labeling of Health food
According to Article 2, Paragraph 1 of the Health Food Control Act, "the term 'health food' shall denote food with health care effects, having been labeled or advertised with such effects." Paragraph 2 of the same article defines health care effects as "an effect that has been scientifically proven to be capable of improving people's health, and decreasing the harms and risks of diseases. However, it is not a medical treatment aimed at treating or remedying human diseases; such 'health care effects' shall be announced by the central competent authority." According to Article 7 of the same Act, the manufacture or import of health food shall apply to the Ministry of Health and Welfare for review and registration, and the manufacture or import shall be permitted after a license is used. In addition, according to Article 6 of the same Act, food that has not obtained a license in according with the same Act shall not be labeled or advertised as health food. That is to say, the Health Food Control Act has a clear definition and regulations for health food.
Second, according to Article 28, Paragraph 1 of the Act Governing Food Safety and Sanitation, "the labeling, promotion or advertisement of foods, food additives, food cleansers and food utensils, food containers or packaging designed by the central competent authority in a public announcement shall not be false, exaggerated, or misleading." Therefore, to improve the hygiene and safety of people's diet, Article 4, Paragraph 2 of the newly revised Regulations Governing of Criteria for the Label, Promotion and Advertisement of Foods and Food Products Identified as False, Exaggerated, Misleading or Having Medical Efficacy implemented on July 1st, 2022, (hereinafter referred to as the "Regulations") provides that "if the word 'health' is part of the food product name, it is identified as misleading. However, this regulation shall not apply to food product issued with a health food registration license." According to the above regulation, only the health food that have been reviewed and registered to obtain a license can use the word "health" in the product name. The legislative purpose of this new regulation is to prevent consumers from misunderstanding that just because the food is labeled with the word "health", they imagine the product is healthier. Anyone who violates the above regulations will be fined NT$40,000 to 4 million in accordance with Article 45 of the Act Governing Food Safety and Sanitation and will be recalled and corrected within a time limit in accordance with Article 52 of the same Act.
In addition, according to the practice of the TFDA, if the word "health" in Chinese or English appears in the "registered trademark, logo, brand, series name" of a product, and it is "parallel or side by side" with the "product name", although it is not a part of the "product name", if the overall display is likely to be misunderstood by consumers as part of the "product name", it will be deemed as a violation of the Regulations.
III. The Trademark of the Health Food (the trademark design or the designated good's name contains the word "health")
In response to the implementation of the Regulations, the Intellectual Property Office (hereinafter referred to as the "IPO") also announced the principles for the examination of trademark applications with the word "health" in the trademark design or the designated good's name.
Regarding the trademark design, Article 30, Paragraph 1, Item 8 of the Trademark Act stipulates that "a trademark shall not be registered in any of the following: being likely to mislead the public as to the nature, quality, or place of origin of the goods or services." According to the current practice of the IPO, if the trademark design contains the word "health" and it is combined with the product name to easily cause the consumers to have a healthier association and cause misunderstanding, then the IPO will, according to Article 30, Paragraph 1, Item 8 of the Trademark Act, notify the trademark applicant to delete the word "health". Trademark designs such as "health tea", "health egg", "health cereal", are all published examples of that could possible receive the IPO's notice of deletion of the word "health". If the word "health" contained in the trademark design is deleted without changing the same impression of the original trademark design for consumers to identify the source, the trademark applicant may submit a letter to the IPO to delete the word "health".
It is worth noting that although the word "health" is included in the trademark design, if it is not combined or parallel with the product name, and the overall display is not easily misunderstood by consumers as part of the product name, the IPO believes that there is no issue with Article 30, Paragraph 1, Item 8 of the Trademark Act. Examples of such trademark designs are "delicious and healthy", "natural, health, and wellness".
In addition, regarding the designated good's name, if the designated good is food, and the designated good's name contains "health" plus "product name", the IPO believes that it is not appropriate to accept such designated good's name because it violates the Regulations. Thus, the IPO will notify the trademark applicant to delete or amend the designated good's name. For example, the product name "health vinegar" designated for use in Class 32 is an unacceptable designated good's name.
IV. Conclusion
To summarize the above, to comply with the Regulations for the labeling of "health" food that came into effect on July 1st, 2022, if a food business wants to add the word "health" to the product name of its own food products, it should apply for review and registration in accordance with the relevant provisions of the Health Food Control Act and obtain a license. On the other hand, the practice of trademark application examination has also been updated in response to the Regulations. Trademark applicants should pay attention to the design of their trademark and the designated goods. If the word "health" is used and combined with the product name in the trademark design in a way that can mislead the consumers into making associations that the product is healthier, the IPO will see this as a violation of Article 30, Paragraph 1, Item 8 of the Trademark Act. If the good designated by the trademark is food and its name contains the word "health", the IPO will notify the trademark applicant to delete or amend the designated good's name.