Complaint that Ya Chou Securities Ltd., Co. and Kuo Hua Advertising Ltd., Inc. used the phrase "Flourishing 2000" in the media in violation of the Fair Trade Law
Case:
Complaint that Ya Chou Securities Ltd., Co. and Kuo Hua Advertising Ltd., Inc. used the phrase "Flourishing 2000" in the media in violation of the Fair Trade Law
Key Words:
flourishing 2000, investing and personal finance year
Reference:
Fair Trade Commission Decision of July 20, 2000 (the 454th Commissioners' Meeting); Letter No. 8907406-001 Kung Tsan Tzu (89)
Industry:
Baked Food Product Manufacturing Industry (1142)
Relevant Laws:
Summary:
1. The complainant stated that complainant's Flourishing Group is a spin-off group headed by Ilan Foods Ind. Co. Ltd. ("Ilan Foods"). According to the complainant, Flourishing Group is a prominent member of the food industry and Flourishing Group's "Flourishing Hsien Pei" is a well-known brand. After registering the "Flourishing" trademark in 1983, the complainant filed further trademark registration applications in the United States of America and other countries. The trademark has been used widely on goods in many classes. The name of the mark is consequently the symbol of the complainant's group. Notwithstanding these facts, Ya Chou Securities Co., Ltd. ("Ya Chou Securities") and Kuo Hua Advertising Enterprises Co., Ltd. ("Kuo Hua Advertising") used the phrase "Flourishing 2000" in major media outlets for publicity purposes, causing businesses or consumers to confuse the "Flourishing" mark with "Flourishing 2000" and mistakenly believe that the advertised services were provided by the Flourishin g Group. Moreover, because the name "Flourishing" is used in the company names of other Flourishing Group corporate entities in Chinese Taipei, the respondent's use of "Flourishing 2000" as a presentation or symbol also causes members of the public to believe erroneously that the advertised services are provided by the Flourishing Group. 2. The Fair Trade Commission (the Commission) investigated and learned that the principal of the advertisement in this case was Ya Chou Securities. The advertising agency was Kuo Hua Advertising. According to Article 21(4) of the Fair Trade Law (the "Law"), advertising agencies bear jointly civil law liability with the principal. Furthermore, since Kuo Hua Advertising is not the enterprise that provides goods or services in this case, it should not be held responsible for any administrative penalty. Consequently, Ya Chou Securities, the principal of the advertisement, is the subject of this complaint. 3. The advertisement describes the financial and securities industry, which differs from the business or services conducted or provided by Ilan Foods. There are consequently no possibilities at all that the advertisement would cause confusion over the subject providing the goods on the marketplace. The phrase "Flourishing 2000" as used in the advertisement, moreover, expresses the idea that the year 2000 represents an excellent opportunity for personal finance and investment. This is an ordinary usage and manner of expression. Moreover, the appeal that the advertisement makes with the word "flourishing" does not refer to goods or services. It differs from what Article 20 of the Law defines a symbol highlighting the origin or function of goods or services. The Commission also reviewed the advertisement at issue and found that the overall impression and effect of the advertisement observed as a whole was unlikely to cause the general public with reasonable care to make mistaken judgments or decisions regarding [1] the services or incentives listed on the same page including free PC and mobile phones provided by Ya Chou Securities or [2] Ya Chou Securities' name, trademark design, website name, or investment hotline. 4. The Commission reached the conclusion that the word "flourishing" in the advertisement was merely an ordinary usage that did not have the function of highlighting the origin of the goods or services advertised. Since the overall appearance of the advertisement was not misleading, the Commission did not accept the argument that Ya Chou Securities had violated Articles 20(1)(ii) and 21 of the Law. Summarized by Sun Jai Suey; Supervised by Pai Yu Chuang