A complaint filed against Fubon Financial Management Co., Ltd. for possible violation of the Fair Trade Law by employing "Fubon", "Fubon Financial" and other businesses and service facilities

Case:

A complaint filed against Fubon Financial Management Co., Ltd. for possible violation of the Fair Trade Law by employing "Fubon", "Fubon Financial" and other businesses and service facilities

Keywords:

symbol, free riding on other's business reputation, identical or similar use

Reference:

Fair Trade Commission Decision of August 27, 2004 (the 668th Commissioners' Meeting); Disposition (93) Kung San Tzu No. 0930006480

Industry:

Other Financing and Auxiliary Financing Not Elsewhere Classified (6299)

Relevant Laws:

Articles 20 and 24 of the Fair Trade Law

Summary:

1.	The case originated from a complaint letter filed by Fubon Financial Holding Company (hereinafter referred to as the "complainant") alleging that: the specific portions of the complainant's company name, "Fubon" and "Fubon Financial" are the symbol commonly known to relevant financial enterprises or consumers. The specific portions of the registered company name of Fubon Financial Management Co., Ltd. (hereinafter referred to as the "respondent"), "Fubon" and "Fubon Financial" are identical to the complainant's. The range of the respondent's business activity includes financial planning, deposit projects, loan services, fund purchase, stock market analysis, life and medical insurance, and credit cards. The said businesses are similar to the business items of the complainant and complainant's subsidiaries, such as P&C Insurance, Fubon Bank, Fubon Securities, Fubon Life Insurance, Fubon Asset Management, and Fubon Investment. In addition, the "FC" design employed on the business cards and the signboard used by the respondent, whether the overall composition, design, or colors, is almost the same as the "FB" design employed by the complainant for its trademark or other business symbols. Also, the business items of the respondent are related to finance and life insurance businesses, which are sufficient to cause confusion to the relevant enterprises or consumers and might be a possible violation of Article 20(1)(ii) of the Fair Trade Law. Furthermore, the respondent used "Fubon" and "Fubon Financial" as the specific portions of its company name to free ride on the complainant's good business reputation and increase trading opportunities. It is a means that extracts the fruits of other's labor and is conspicuously unfair to the competitors, in violation of Article 24 of the Fair Trade Law.
2.	Upon the investigation, the Fair Trade Commission (FTC) found that:  (1) According to the various evidence submitted by the complainant, although it can prove that "Fubon," "Fubon Financial," and the "FB" pattern used by the complainant have become a business symbol commonly known to relevant financial enterprises or consumers, it is still difficult to prove that the complainant uses "Fubon Financial" to externally represent its service source. With insufficient evidence, it is hard to determine that "Fubon Financial" has become the complainant's "symbol that represents the complainant's business or service, commonly known to relevant enterprises or consumers." Moreover, according to Article 11(1) of the Financial Holding Company Act, "the words "Financial Holding Company" must be included in the name of a financial holding company." Therefore, it is prescribed in the law that the complainant uses the full company name or "Fubon Financial Holding," while the respondent uses its full company name "Fubon Financial Management Co., Ltd." on its signboard of the business place, in the newspaper advertisements, business cards, and external letters. Therefore, the names of both parties to the case already indicate different business types.  (2)  The respondent received the approval of establishment from the Ministry of Economic Affairs on October 1, 2002. From the observation of the respondent's business activities, it uses the name "Fubon Financial Management Co., Ltd." or "Fubon Financial Management Service Center" registered pursuant to the Company Law, which shall fall under the general usage of company names. It was also found that the respondent applied for the registration of the trademark "FC" on April 15, 2003 and acquired the trademark registration on April 1, 2004. According to the Intellectual Property Bureau, Ministry of Economic Affairs, the "FC" trademark employed by the respondent simply uses English letters F and C, while the complainant uses artistic design to abstractly express the combination of English letters F and B. The overall concepts and pronunciations of the two trademarks are obviously different. Even though the trademarks utilize similar blue and green in the design, Fubon Group's identification of the trademark "FB" or its business reputation was not jeopardized thereby. (3) The Commission's further investigation found that the complainant's enterprise group mostly engages in chartered business items, such as banking, insurance, credit cards, and futures, etc. It does not have any agencies providing agency services for the chartered business items as mentioned above. However, the respondent is an agency providing agency services regarding non-chartered businesses such as, automobile/motorcycle property and casualty insurance, life insurance and loans, and credit cards, to collect agency fees. The respondent's business content is to assist customers in filling out the applications and deliver the applications to various major insurance companies or financial institutions for review. In addition, the businesses and enterprises that the respondent represents are not limited to the complainant. They also include the complainant's competitors, such as Taishin, International Commercial Bank of China, Union Bank of Taiwan, E-Sun, Jih Sun Bank, Taitung Business Bank, and other banks, as well as Grand Cathay Securities Corp. With common attention and based on the cognition of general business competition, the consumers or relevant enterprises shall not have the impression that the complainant and the respondent belong to the same company or are affiliate enterprises. Therefore, even if the respondent claimed that it engaged in the agency services concerning "financial planning, deposit projects, loan services, funds purchase, stock market analysis, life and medical insurance, and credit cards" on its business cards, wanted ads, and at its business place, it employed larger typeface to state the full company name, "Fubon Financial Management Co., Ltd.," as the business subject and the "FC" trademark, sufficient to distinguish from the complainant's business appearance.
3.	There is no concrete evidence proving that "Fubon Financial" is a "business or service symbol commonly known to relevant enterprises or consumers" that belongs to the complainant, and the company names of both parties of the case indicate different business types. Also, the respondent acquired the registration of the "FC" trademark in accordance with the Trademark Act. Its usage of the trademark does not cause confusion with the complainant's trademark. Therefore, it is difficult to say that the respondent's act falls under Article 20 of the Fair Trade Law, in which "one enterprise uses in the same or similar manner" by using the name registered pursuant to the Company Law with regular means. In addition, the complainant failed to provide specific evidence sufficient to prove that the respondent had other active conducts that cause confusion to the relevant enterprises or consumers with the facilities or activities of the business or service of the complainant. Thus, based on the existing evidence, it is difficult to determine that the respondent violated Article 20 of the Fair trade Law. As mentioned above, the overall concepts and pronunciations of the "FC" trademark employed by the respondent and the "FB" trademark employed by the complainant are obviously different. The respondent also clearly indicates its full company name, trademark, and other words on the signboard at the business place and business cards, differentiating from the complainant. Also, since the business items of both parties are different, consumers or relevant enterprises, with common attention and based on the cognition of general commercial competition, shall not have the impression that the complainant and respondent belong to the same company or are affiliate enterprises. Thus, with the existing evidence, it is difficult to determine that the respondent free rode on the complainant's business reputations or extracted the fruits of the complainant's labor. The FTC found that the respondent did not violate Article 24 of the Fair Trade Law.

Summarized by Ho, Yi-Hsuan;

Supervised by Wu, Lieh-Ling

Appendix:

Fubon Financial Management Co., Ltd.'s Uniform Invoice Number: 80050115