Fair Trade Commission Disposal Directions (Guidelines) on the Reviewing of Cases Involving Enterprises Issuing Warning Letters for Infringement on Copyright, Trademark, and Patent Rights

Passed by the 288th Commissioners' Meeting on May 7, 1997
Promulgated by Order (86) Kung Fa Tzu No. 01672 on May 14, 1997
Article 6 amended by the 397th Commissioners' Meeting on June 16, 1999
Article 3 and 4 amended by the 416th Commissioners' Meeting on October 27, 1999
Promulgated by Order (88) Kung Fa Tzu No. 03239 on November 9, 1999
Article 10 added and Article 2 amended by the 478th Commissioners' Meeting on January 4, 2001
Promulgated by Order (90) Kung Fa Tzu No. 00139 on January 15, 2001
Title amended by the 688th Commissioners’ Meeting on January 13, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940001278 on February 24, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940006976 on August 26, 2005
Amended by the 721st Commissioners’ Meeting on September 2, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940007480 on September 16, 2005
Article 2 amended by the 792nd Commissioners' Meeting on January 11,2007
Promulgated by Order (96) Kung Fa Tzu No.0960000622 on January 23, 2007
Amended by the 807th Commissioners’ Meeting on April 26, 2007
Promulgated by Order (96) Kung Fa Tzu No.0960003846 on March 8, 2007
Amended by the 950th Commissioners’ Meeting on January 19, 2010
Promulgated by Order (99) Kung Fa Tzu No.0990000718 on January 28, 2010

(Purpose)
The Fair Trade Commission (hereinafter "the Commission") adopts the Guideline in order to ensure fair competition among enterprises, to maintain trading order, and to effectively handle the abusive uses of copyright, trademark, or patent rights and thus constituting unfair competition, through inappropriate issuance of warning letters to other persons alleging that the competitors have infringed copyright, trademark, or patent rights.
(Definitions)
The "act of issuing a warning letter by an enterprise" in these Guidelines means an enterprise, in addition to assert rights or request cease of infringement according to legal procedures, uses one of the following means to publicize to its own or another enterprise's trading counterparts or potential trading counterparts indicating that another enterprise infringes its copyrights, trademarks, or patent rights:
(1) a warning letter;
(2) a notification letter;
(3) an attorney letter;
(4) an open letter;
(5) an advertisement or public notice; or
(6) other written materials sufficient to inform its own or another enterprise's trading counterpart or potential trading counterpart.
(Acts Constituting a Proper Exercise of Rights Pursuant to the Copyright Law, Trademark Law, and Patent Law … 1)
The act of issuing a warning letter by an enterprise constitutes proper exercise of rights pursuant to the Copyright Law, Trademark Law, or Patent Law where the enterprise has issued the warning letter subsequent to confirmation, through one of the following procedures, that its rights have been infringed:
(1) copyright, trademark, or patent right infringement ruling has been rendered by a court of first instance;
(2) A determination of copyright infringement has been rendered by the Copyright Review and Mediation Committee after conciliation;
(3) the allegedly infringing article has been submitted for assessment by a professional infringement assessment institution and an assessment report has been obtained, and the potentially infringing manufacturer, importer, or agent has either been notified beforehand or simultaneously about the issuance of warning letter and is requested to cease such infringement.
An enterprise that fails to give notification and request cease of the infringement as stipulated in the posterior part of Paragraph 1, Subparagraph 3 may nevertheless be considered as have already carried out the procedure of making cease of infringement notification if the enterprise has taken procedures of legal remedy beforehand, or exercised all reasonably possible due diligence on the notification or if such notification were objectively impossible, or there are concrete evidences to prove that the party being notified has already known about the infringement controversy.
(Acts Constituting a Proper Exercise of Rights Pursuant to the Copyright Law, Trademark Law, and Patent Law … 2)
For an enterprises that has only issued warning letters after carried out the following procedures to confirm its rights have been infringed, and furthermore do not have any incidents of violating Articles 19,21,22, and 24 of the Fair Trade Act, shall be considered as properly exercising its rights pursuant to the Copyright Law, Trademark Law, or Patent Law:
(1) Notify the allegedly infringing manufacturer, importer, or agent to request cease of infringement beforehand or simultaneously with the issuance of warning letter;
(2) State clearly the precise content and scope of copyright, trademark or patent rights, and the concrete facts of infringement in the warning letter (for example, the time and place for the rights at issue, the production process, uses, sale or import), so that the receivers of letters have sufficient knowledge that the rights at issue are possibly being infringed.
An enterprise that fails to give notification and request cease of infringement as stipulated in Subparagraph 1 of the preceding paragraph may nevertheless be considered as have already carried out the procedure of making cease of infringement notification if the enterprise has taken procedures of legal remedy beforehand, or exercised all reasonably possible due diligence on the notification or if such notification were objectively impossible, or there are concrete evidences to prove that the party being notified has already known about the infringement controversy.
(Penalty)
The act of issuing a warning letter by an enterprise without adopting the preliminary procedures set forth in the provisions of Paragraph 3 and Paragraph 4 shall be deemed a violation of the Article 24 of the Fair Trade Act if such an act is deceptive or obviously unfair and sufficient to affect trading order.
Though the issuing enterprise has adopted the preliminary procedures set forth in the provisions of Paragraph 4, if the content of a warning letter involving in incidents of unfair competition conducts, the act of issuing a warning letter will be examined on a case-by-case basis for any violation of the Articles19 (1), 19(3), 21,22,24 of the Fair Trade Act.
(Guidelines also apply to inappropriate issuance of warning letters concerning infringement by enterprises at different stages of production/sales)
If an enterprise inappropriately issues a warning letter indicating that copyright, trademark, or patent had been infringed by a non-competing enterprise, i.e. enterprise not at the same stage of production/sale as the issuing enterprise, and thus has created unfair competition, these Guidelines shall also apply.