Complaint against Tung Chen Sun-Rise Enterprise Co., Ltd. for pirating design of an air gun and taking advantage of the commercial reputation of another firm in violation of the Fair Trade Law
Case:
Complaint against Tung Chen Sun-Rise Enterprise Co., Ltd. for pirating design of an air gun and taking advantage of the commercial reputation of another firm in violation of the Fair Trade Law
Key Words:
air gun, functional shape related to applications or technical features
Reference:
Fair Trade Commission Decision of May 24, 2000 (the 446th Commissioners' Meeting); Disposition (89) Kung-Ts'an Tzu No. 8808638-004
Industry:
Metal Tool Production Industry (2810)
Relevant Laws:
Summary:
1. This case originated from a complaint filed by K'e Wei Enterprise Co., Ltd. (K'e Wei) alleging that Tung Chen Sun-Rise Enterprise Co., Ltd. (Tung Chen) pirated the design of a model of air gun manufactured by K'e Wei rather than creating in its own original creative design. Except the name of the air gun, the external appearance, shape, and color were identical with complainant's products, creating public confusion. The act was a free ride on complainant's business reputation built up over the years, and constituted unfair competition against the complainant. 2. After the Fair Trade Commission (the Commission) personnel visited numerous hardware stores for on-site investigation, it was found that the "gun-like shape" of the product in question was the customary shape used for that type of product. The shape also served practical purposes or technical functions, qualifying it as a technology that can be freely used throughout the industry. It did not have the function of identifying the source of the products. It therefore did not meet the requirement of "symbol" under Article 20 of the Fair Trade Law. 3. After examination of evidence submitted by the parties, the Commission found that the complainant had made the product in question since 1992, and the complainant had agreed to respondent's use of respondent's own mark on the product at the beginning of their cooperation. Further, the amount of capital that respondent had spent on advertising and the duration of such advertisement indicated that the respondent had established its own brand name and had no intention of free-riding on the complainant's reputation. 4. In conclusion, if consumers had been misled or confused by the product in question, it should have taken place at the beginning of the two companies' cooperation, and due to the fact that they manufactured the same product. It was not because respondent had taken deceptive or obviously unfair practices which would disrupt the trading order. Thus the respondent in this case did not violate the Fair Trade Law. Appendix: Tung Chen Sun-Rise Enterprise Co., Ltd.'s Uniform Invoice Number: 23819003 Summarized by Sun Chiah-hui; Supervised by Pai Yu-chuang