Taiwan Ti Na Co., Ltd. violated the Fair
Trade Law for by "Mr. Zebra's Salt Sarsaparilla"
Chinese Taipei
Case:
Taiwan Ti Na Co., Ltd. violated the Fair Trade Law for by "Mr.
Zebra's Salt Sarsaparilla"
Key Words:
free riding, passing off, deceptive or obviously unfair acts,
trading order
Reference:
The Fair Trade Commission Decision of October 22, 1997 (the 312nd
Commission Meeting); Disposition (86) Kung Chu Tzu No. 183
Industry:
Food and Beverage Industry (2010)
Relevant Laws:
Article 24 of the Fair Trade Law
Summary:
- According to the Fair Trade Commission's investigation, the
complainant repeatedly stressed that its sarsaparilla product, which has curve stripes in
white alternating with gold on brown bottom, has been an expression well known to the
related general public. However, the investigation also showed that most of the
sarsaparilla cans on the market have words written in white and patterns in white and gold
on brown bottom. So, in practice, as the original color of sarsaparilla is brown, the
packaging of such drinks usually uses brown as the bottom, which at most serves to inform
consumers that the content of the drink can is sarsaparilla. Therefore, this color
arrangement only proves that manufacturers of sarsaparilla in packaging their products
commonly use such colors. Such color arrangement is not yet sufficient to constitute an
expression that can help distinguish different brands of sarsaparilla. As a result, no
violation of Article 20(1)(i) of the Fair Trade Law is found in this regard.
- Moreover, pursuant to Article 24 of the Fair Trade Law, which states
"aside from the other provisions in this Law, an enterprise also shall not engage in
any deceptive or obviously unfair acts that can adversely affect trading order," an
enterprise that engages in passing off or improperly copying the exterior appearance or
expression of another's products will be found to be exploiting the results of another's
hard work, which contravenes the ethics of commercial competition and constitutes unfair
competition. The exterior appearance, color arrangement and pattern of the container of
Hey-Song Sarsaparilla, whose manufacturer is the complainant in the case, may not be an
expression [as defined in Article 20(1)(i)]. Nonetheless, as it has been marketed for a
long time, the product has built its reputation among the related general public. On the
other hand, the sanctioned party defended itself by saying that its Salt Sarsaparilla has
been developed in response to the consumers' habit of adding salt in sarsaparilla, and
that there are significant differences between Mr. Zebra's Salt Sarsaparilla and Hey-Song
Sarsaparilla in terms of their ingredients and the words used in their packaging. However,
the respondent's Salt Sarsaparilla on its container has patterns "considerably
similar" to those of Hey-Song Sarsaparilla's container, i.e., both have curve stripes
in white and gold colors on the cans. In addition, on the right side of the respondent's
container, there are four clearly visible characters stating "Salt
Sarsaparilla", whereas the respondent's trademark, "Mr. Zebra," is marked
underneath in such small sizes that consumers may easily fail to perceive it when they
make the purchase in a hurry. Besides, the name "Salt Sarsaparilla" is unable to
distinguish the particular product from others as the word "Salt" may very well
be interpreted by consumers as a description of the product's quality, rather than as an
indication of its origin. Therefore, an overall look at the exterior appearance, color
arrangement and patterns of the container in combination with the appellation "Salt
Sarsaparilla" can easily lead consumers to mistake the product in question for
Hey-song Sarsaparilla. The respondent's failure to make positive efforts to distinguish
its product from that of the complainant has obviously caused damages to the complainant
and adversely affected trading order. Therefore, based on the facts cited above, the
respondent has violated Article 24 of the Fair Trade Law by copying the exterior
appearance, color arrangement, patterns of the container of the complainant's product and
by associating its product with the complainant's goodwill and thus taking advantage of
the results of the complainant's years of hard work.
Summarized by Chen, Pin-chiu
Supervised by Wu, Tin-hung
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