A complaint alleging that the trade dress of the canned abalone products sold by Monteal Co., Ltd. and Pao Chin Wang Enterprises Co., Ltd. imitated that of the "Che Lun Brand" canned abalone product, which is likely to impact the trading order and is an obviously unfair competition.
Case:
A complaint alleging that the trade dress of the canned abalone products sold by Monteal Co., Ltd. and Pao Chin Wang Enterprises Co., Ltd. imitated that of the "Che Lun Brand" canned abalone product, which is likely to impact the trading order and is an obviously unfair competition.
Key Words:
overall trade dress, imitate in every detail, canned abalone
Reference:
Fair Trade Commission Decision of August 2, 2001 (the 508th Commissioners' Meeting); Dispositions (90) Kung Ch'u Tzu No. 108 and 109
Industry:
Other Foods And Groceries Wholesaling Industry (4429)
Relevant Law:
Article 24 of the Fair Trade Law
Summary:
1. A complaint filed by the American company Haiyuan Products Co., Ltd. alleged that the "Ta Che Brand" canned abalone product imported and sold by Monteal Co., Ltd. (Monteal) and the "Chin Shan Brand" canned abalone product imported and sold by Pao Chin Wang Enterprises Co., Ltd. (Pao Chin Wang Enterprises) imitated the well-known trade dress of Haiyuan Products' "Che Lun Brand" canned abalone product, and were therefore in violation of the Fair Trade Law. 2. The Fair Trade Commission's investigations found the following: At the time that Monteal and Pao Chin Wang Enterprises (the respondents) were making use of the trade dress of the "Che Lun Brand" canned abalone product (the subject product), the overall trade dress of that product had already been marketed in Chinese Taipei for over ten years, and was well known in the market and to consumers. With respect to the respondents' products, the top of each can bore a trademark in red lines. The front bore the English trademark name in red lines over a colored abalone design. The English word "ABALONE" was featured below this in the same script. The back bore the "Ta Che Brand" and "Chin Shan Brand" trademark designs. A map of the place of origin was featured below in blue lines. The sides featured the words "Produced in Australia" and "Real Abalone." The bottom of each can was in pink, and the upper and lower edges were green edged with blue. When the individual elements of the respondents' products - the principal English and Chinese labeling, the design, script, and wording, and the arrangement of design and color - are taken as a whole, it is clear that their overall artistic conception completely imitates that of the subject product. Although the trade dresses of offending products had certain differences in wording and design from the subject product, and did not cause confusion among relevant enterprises and consumers, they clearly did imitate the well-known trade dress of the subject product. 3. Although the offending products were canned abalone products, as was the subject product, the respondents could have distinguished their products through distinctive design. Yet they failed to rely upon their own efforts and their own creative marketing expertise to develop their own trade dress in pursuit of market share. Instead they imitated the overall trade dress of another person's product. They took a free ride on another person's commercial reputation and in doing so they diluted its well-known trade dress. Their acts contravened business ethics and exploited the complainant's hard-won commercial benefits. This caused injury to efficient competition in the market, and constituted obviously unfair acts likely to affect the trading order, in violation of Article 24 of the Fair Trade Law. After weighing the motives for the unlawful acts, the degree and duration of impact on the trading order, the scale of the enterprises, and the respondents' attitudes after the acts, this Commission ordered Monteal and Pao Chin Wang Enterprises to cease their unlawful practices, and imposed an administrative fine of NT$300,000 on Monteal and an administrative fine of NT$400,000 on Pao Chin Wang Enterprises (which was also found to have engaged in false advertising) pursuant to the forepart of Article 41 of the Fair Trade Law. Appendix: Monteal Co., Ltd.'s Uniform Invoice Number: 84921873 Pao Chin Wang Enterprises Co., Ltd.'s Uniform Invoice Number: 86435855 Summarized by Tai, Mei-Chin; Supervised by Yeh, Ning