No disposition was made in the case of Hunya Foods Co., Ltd. was complained for applying improper means to sell goods

Case:

No disposition was made in the case of Hunya Foods Co., Ltd. was complained for applying improper means to sell goods

Key Words:

identical company, advertisement, nougat

Reference:

Fair Trade Commission Decision of June 17, 2004 (the 658th Commissioners' Meeting)

Industry:

Sugar Confectionery Manufacturing (0841), Bakery Product Manufacturing (0842)

Relevant Laws:

Article 19(iii) , 21(1) and 24 of the Fair Trade Law

1. This case originated from a report written and sent by Salico Foods Co., Ltd. against Hunya Foods Co., Ltd., which as the respondent allegedly declared that its product was manufactured by the identical company that manufactures nougat products under the brand of "Big Hey Song Small Couple" owned by the complainant when selling its own nougat products under the brand "Rivon," where the sales measure adopted is likely to mislead consumers and possibly involved in violation of Articles 19(iii), 21(1) and 24 of the Fair Trade Law (FTL).
2. Findings of the Fair Trade Commission (FTC) after investigation:
   After the company that manufactures nougat for the complainant as a foundry finished its business, its original land, factory, and machinery equipment were taken over by another company that currently manufactures nougat for the respondent as a foundry; some master workers and employees then contacted the respondent to manufacture nougat products for it. Moreover, the respondent claimed that at the introductory meeting of its product, in order to elaborate the advertising concept of "retaining senior masters with over 50 years of experience," the details of how both parties connected were explained to the manager of each retail store, which allowed sales personnel in each retail store to indirectly know about the preceding information.
3. Grounds for disposition:
   According to contents of the sound-recording evidence gathered by the complainant, the sales personnel of the retail stores of the respondent made a statement of the identical company under the circumstances where the evidence gatherer who pretended to be a customer led the subject to the products of the complainant. The sales personnel neither initiatively mentioned the brands or products of the complainant, nor conveyed identical messages. There is also no sufficient evidence showing that the respondent had indicated or trained its sales personnel of the retail stores to inform the customers of the said message. Besides, the said statement was expressed as a response to the question made by an individual consumer who was present at the retail store, instead of a respectable amount of the public. Such act does not constitute an advertisement or other way making known to the public. Moreover, such statement is not sufficient to mislead the person sent out by the complainant, and it was based on the conversations made by different persons, the content of the conversations shall be further communicated, consulted, or clarified. Without considering whether such sound-recorded evidence in dispute has completely presented the entire situation involved with the contents of the conversations, its contents alone also fail to prove that the accused had deceived ordinary consumers or had actively made the same or a similar statement to ordinary consumers. Finally, there is no other evidence sufficient enough to prove that ordinary consumers that had intended to buy the complainant's products instead turned to purchase products of the respondent due to the statement made by sales personnel of the respondent; and the features of the nougat products of both parties have apparently differences, which would not have misled the ordinary consumers, and thus it is difficult to conclude that the respondent has committed a deceptive or obviously unfair conduct; therefore, based on existing evidence, it is difficult to hold that the respondent has violated Articles 19(iii), 21(1) and 24 of the FTL.

Summarized by Lin, Chia-Hua; Supervised by Wu, Bi-Ju