The Japanese Trademark Law does not permit the registration of sounds or smells.

(a) An application for registration of a trademark which is "well known among consumers as indicating the goods or services connected with another person's business, and of a trademark similar thereto, used with respect to such goods or services, or similar goods or services" shall be refused in accordance with sub-paragraph (x) of Article 4(1) of the Japanese Trademark Law. In case such a trademark is registered, the registration may be invalidated through appeal process, provided that such an appeal is requested within five years from the registration of that trademark. If such a trademark is registered in bad faith, however, such registration may be invalidated at any time. (b) Furthermore, an application for registration of a trademark which is "well known among consumers as indicating the goods or services connected with another person's business, and of a trademark similar thereto, used with respect to non-similar goods or services" shall be refused in accordance with sub-paragraph (xv) of Article 4(1) of the Law, if it is likely to cause confusion with goods or services connected with another person's business. In case such a trademark is registered, the registration may be invalidated through appeal process, provided that such an appeal is requested within five years from the registration of that trademark. If such a trademark is registered in bad faith, however, such registration may be invalidated at any time. (c) The Trademark Examination Guidelines provide that the following elements should be taken into account by authorities concerned in determining "whether or not a trademark is well known among consumers" as provided for in sub-paragraph (x) of Article 4(1) of the Law: (i)whether or not the trademark in question is actually used; the nature of goods or services for which the trademark is used; (ii)the starting date of the use; (iii)the period of the use; (iv)the area where the trademark, or the trademark goods or services have been used; (v)the volume of production or transaction of the goods or services; the number of certificates issued; (vi)the methods, frequency and contents of advertisement. (d) In addition to the protection by the Trademark Law, the Japanese Unfair Competition Prevention Law provides that the use of an indication of goods or business (including a trademark), which is identical with, or similar to, another person's indication as to be well known among consumers, is one of the types of unfair competition, provided that the use causes confusion with another person's goods or business. Any person whose business interests are infringed by the unfair competition is entitled to request an injunction under the Law (see Article 3 of the Japanese Trademark Law).

Article 5bis(1) of the Paris Convention provides a grace period for the payment of fees for the maintenance of industrial property rights. It is understood that these provisions do not apply to the payment of fees for initial registration or registration for renewal (see "Guide to the Application of the Paris Convention" by Professor G. H. C. Bodenhausen). Under the Japanese Trademark Law, trademark rights are granted for a period of ten years if the prescribed fees for the registration have been paid in a lump sum at the time of initial registration or registration for renewal and fees for maintaining trademark rights are not provided for. Therefore, a grace period under Article 5bis(1) of the Paris Convention is not provided for by the Law.

Under the Japanese Trademark Law, when associations in other WTO Members file an application for registration of a collective mark, such an application shall not be refused on the ground that such associations are not established in Japan or not constituted according to the Japanese laws and regulations.

Japanese Law requires that associations be incorporated legal persons as a condition to seek the protection of their collective trademarks.

Article 71(1) of the Japanese Customs Law prohibits the importation of foreign goods bearing false indications with respect to origin.

Article 71(1) of the Japanese Customs Laws prescribes the concept of "false indication" or "misleading indication" with respect to only "origin". The Japanese Unfair Competition Prevention Law provides that the act of importing goods with an indication which is likely to mislead the public with respect to the place of origin, quality, contents, etc., is one of the types of unfair competition (Article 2(1), sub-paragraph (x)). The false indication of the producer, manufacturer or merchant comes under the act referred to in this sub-paragraph. A person whose business interests are infringed or are likely to be infringed by unfair competition, is entitled to request an injunction preventing or suspending such unfair competition (see Article 3(1)).

"Combinations of colours" provided for in Article 15.1 of the TRIPS Agreement are eligible for registration under Article 2(1) of the Japanese Trademark Law. In order to identify a specific combination of colours as an object of trademark registration, identification of the border lines dividing colours, which by nature constitute a graphical pattern, is indispensable. Therefore, it is understood that the requirement to identify such a graphical pattern at the filing of an application is consistent with the Agreement as was clarified during the negotiations.

The five-year time-limit stipulated in Article 47 of the Japanese Trademark Law is not applicable to the request for cancellation of the registration of a well-known trademark registered in bad faith.

Article 47 of the Trademark Law provides that where a trademark has been registered in contradiction to Article 4(1), sub-paragraph (x) (Protection of well-known trademarks), the five-year time-limit shall not be applicable, provided that such a registration has been obtained with "the intention of violating the rules of fair competition". The intention of violating the rules of fair competition is construed as the same as bad faith.

The term "geographical indication" is not used in the Japanese Trademark Law and the Japanese Unfair Competition Prevention Law. Instead, these Laws use the corresponding term "origin" (Articles 3(1)(iii) and 4(1)(xvii) of the Japanese Trademark Law, and Article 2(1)(x) of the Japanese Unfair Competition Prevention Law). According to the Trademark Examination Guidelines, "origin" means names of countries, famous geographical names (including names of administrative units, former names of countries and geographical names used in foreign countries), names of streets (including famous streets in foreign countries) or indications on maps.

The meaning of the term "origin" used in the Japanese Trademark Law should be construed broadly. According to the Trademark Examination Guidelines, it is explained that the term "origin" includes "names of countries, famous geographical names (including names of administrative units, former names of countries and geographical names used in foreign countries), names of streets (including famous streets in foreign countries), indications on maps etc.", but is not limited to those. Consequently, the term "origin" is construed as broad enough to include "geographical indications" provided for in Article 22.1 of the TRIPS Agreement.

Article 2(1)(x) of the Japanese Unfair Competition Prevention Law provides that "the use of an indication on goods, which is likely to mislead the public with respect to the place of origin, etc." is one of the types of unfair competition. The use of geographical indications on goods which constitute a false allegation comes under unfair competition referred to in this Article regardless of injury to the business reputation of interested parties. A person whose business interests are infringed or are likely to be infringed by unfair competition is entitled to request an injunction preventing or suspending such unfair competition (see Article 3). Furthermore, a person who infringes on the business interests of another person through such unfair competition, shall be liable to compensate damages which result therefrom (see Article 4). This law also provides that a person who made such unfair competition shall be sentenced to imprisonment or fined (see Articles 13 and 14).

Under the Japanese Trademark Law, an application for registration of a trademark, which contains or consists of a geographical indication referred to in Article 22.3 of the TRIPS Agreement shall be refused in accordance with Article 4(1)(xvi) of the Law on the grounds that it may cause confusion as to the quality, if the said trademark is to be used with respect to goods not originating in the territory indicated. In case such a trademark is registered, the registration may be invalidated through appeal in accordance with Article 46 of the Law. The Trademark Examination Guidelines clearly state that "confusion as to the quality" referred to in Article 4(1)(xvi) of the Law includes "confusion as to the true place of origin".

Under the Japanese Trademark Law, an application for registration of a trademark which comes under Article 22.4 of the TRIPS Agreement shall be refused in accordance with Article 4(1)(xvi) of the Law. In case such a trademark is registered, the registration may be invalidated through appeal in accordance with Article 46 of the Law.

The legal means to prevent the misuse of a geographical indication identifying a wine or spirit is prescribed in paragraph 2 of the "Standard for Indications in Relation to Geographical Indications" (Notification No. 4 of the National Tax Administration, 28 December 1994). This Notification was issued in accordance with Article 86-6(1) of the Law Concerning Liquor Business Associations and Measures for Securing Revenue from Liquor Tax. Paragraph 2 of the Notification is as follows: "Protection of Geographical Indications 2. A geographical indication that indicates the place of origin designated by the commissioner of the National Tax Administration among places of origin of wines or spirits made in Japan, or a geographical indication that indicates the place of origin of wines or spirits made in a Member of the World Trade Organization and use of which, with respect to wines or spirits originating in a region other than the place of origin, is prohibited in that Member shall not be used, with respect to wines and spirits originating in a region other than the place of origin. The above stipulations shall be applied even where the true origin of the wines or spirits is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like."

As a part of voluntary measures, which Japan has been taking to implement Article 23.2 of the TRIPS Agreement, the Japanese Patent Office has published, for an advance notice, a list of geographical indications whose registration could be refused under Article 4(1)(xvii) of the Japanese Trademark Law. More specifically, Japan has disclosed "the List of Geographical Indications for Wines and Spirits Registered with the WIPO International Bureau" in the Trademark Gazette of 23 June 1995. When the Japanese Patent Office obtains a revised edition of the said list, the revised list of geographical indications and the translations thereof will also be published.

The protection of geographical indications for wines and spirits is not limited to those in the WIPO list. The Japanese Government has made efforts to collect lists of geographical indications by asking the competent authorities of foreign countries to provide lists of geographical indications protected within their territories. Those lists obtained are of use in the course of examination as a material to show the existence of the geographical indications.

The use of a trademark indicating or suggesting a geographical unit other than a true place of origin in such a manner as to mislead the public regarding the origin of goods has been prohibited as a misleading representation since 1974 by the Japanese "Act against Unjustifiable Premiums and Misleading Representations". Therefore, it is not envisaged in Japan that a person continues to use this kind of trademark, and "the relevant dates" in accordance with Article 24.5 of the TRIPS Agreement are not provided for. When a trademark does not mislead the public regarding the true place of origin, Article 22 of the TRIPS Agreement is not applicable and the trademark which contains or consists of the geographical indication of goods is allowed to continue to be used. Therefore, "the relevant dates" in accordance with Article 24.5 of the Agreement are not provided for.

The following practice under Article 4(1), sub-paragraph (xvi) of the Trademark Law was established before entry into force of the TRIPS Agreement: "An application for the registration of a trademark shall be rejected under the Japanese Trademark Law where the trademark in the application is identical with, or similar to, a geographical indication in such a manner as to be misleading to the public." Therefore, it is not possible under Japanese Law to acquire or maintain rights to a trademark applied for or registered in good faith where it is liable to mislead the public.