Alleged violation of the Fair Trade Law by Fu Yi Shan Co., Ltd. for copying the external appearance of another person's product
Chinese Taipei
Case:
Alleged violation of the Fair Trade Law by Fu Yi Shan Co., Ltd. for copying the external appearance of another person's product
Key words:
copying, external appearance of products, raisin biscuits
Reference:
Fair Trade Commission Decision of 25 March 1998 (the 332nd Commission Meeting); Disposition (87) Kung Ch'u Tzu No. 085
Industry:
Food Production Industry (2010)
Relevant Laws:
Summary:
Chien Yuan Cookie Company [the complainant], a Singaporean company, filed a complaint against Fu Yi Shan Co., Ltd. [the respondent] stating the following:
The complainant began its sales of MISS KATE RAISIN BISCUITS [hereinafter the complainant's Product] in Chinese Taipei in 1989. The biscuits were well received by consumers and considered their first choice. To promote the biscuits, complainant invested large sums of money in advertisements that made the biscuits' name, package, external appearance, and container well known to the relevant public, and signified the biscuits' source for consumer identification. The complainant found the respondent's product HOVONA RAISIN BISCUIT [hereinafter the respondent's Product] was virtually identical to the complainant's Product in terms of the colors, font depiction, pictorial design of the packaging and external appearance. Such extreme similarity was sufficient to confuse consumers to misidentify the product and was in violation of Article 20(1)(i) of the Fair Trade Law (“the Law”). The respondent also misappropriated the complainant's success and free rode on its business reputation to obtain an advantage in the market. The respondent harmed the complainant's long-term, fair market interests. Such acts were deceptive, obviously unfair and sufficient to adversely affect the trading order in violation of Article 24 of the Law.
Regarding Article 20 of the Law:
"Symbol" as referred to in Article 20 of the Law means a symbol that, serving as an identification or carrying secondary meaning, may serve for the consumer to identify and distinguish the source of the product or service. The container of the MISS KATE biscuits, a cylindrical iron can, could contain 560 grams. Its major packaging design was the MISS KATE trademark and the English words, RAISIN BISCUITS, with a row of pictorial designs of grapes around the can, and a pictorial design of piles of biscuits as the background design. Aside from the trademark, the packaging design described the nature, content, ingredient and flavor of the subject product and did not possess any distinctiveness or serve to identify the source. Since such design alone could not signify the source of the product, it was not a "symbol" as provided under Article 20 of the Law. Thus, the said provision did not apply.
Regarding Article 24 of the Law:
Though the external appearance and the [packaging] design could not serve as an identifying symbol, the complainant had for a long time invested large sums of money in advertising. The relevant public formed a certain impression of the MISS KATE product. The respondent produced and distributed in 1996 its product using an external appearance and [packaging] design similar to that of the complainant's Product, i.e., cylindrical iron can, front design depicted on the external appearance, a thin red line around the can's bottom, a trademark with red as its primary color, a row of pictorial designs of grapes and piles of biscuits in the background. The respondent's packaging design obviously copied the external appearance of the complainant's Product in terms of colors, English words used, pictorial design and arrangement. Such act was "taking a free ride" to misappropriate another person's success and constituted a deceptive and obviously unfair act sufficient to adversely affect the trading order. The respondent was found in violation of Article 24 of the Law.
Summarized by Pai, Yu-chuang
Appendix:
Fu Yi Shan Co., Ltd.’s Uniform Invoice No.: 86981143