A complaint filed against NTUDOCTOR Co, Ltd. for publishing “the nation’s largest tutoring network”, “NTUDOCTOR Tutoring Center is the nation’s largest tutoring web” on the webpage, exploiting the metatag function of website design, and improperly using the “104” symbol of 104 Corporation, a violation of the Fair Trade Law

Chinese Taipei

Case:

Key Words:

Webpage, the nation’s largest, metatag, trademark, false advertisement

Reference:

Fair Trade Commission Decision of April 6, 2006 (the 752nd Commissioners’ Meeting), Disposition (95) Kung Ch’u Tzu No. 095035

Industry:

Other Educational Services (7990)

Relevant Laws:

Article 21 , Paragraph 1 of the Fair Trade Law, applied mutatis mutandis to Paragraph 3, Article 24 of the Fair Trade Law

Summary:

1. This case originated from a complaint filed by 104 Corporation (hereinafter referred to as 104 Co.), indicating the following points:
1. NTUDOCTOR Co, Ltd. (hereinafter referred to as NTUDOCTOR) announced on its “NTUDOCTOR Tutoring Center” webpage (http://www.ntudoctor.com.tw）that its tutoring center was “the nation’s largest tutoring network”, “NTUDOCTOR Tutoring Center is the nation’s largest tutoring web”, without any objective data or evidences. Such announcement may have violated Article 21, Paragraph 1 of the Fair Trade Law, applied mutatis mutandis to Paragraph 3.
2. When NTUDOCTOR designed its webpage, it has exploited the metatag function of website design and by means of metatag has written the mark or symbol “104 Tutoring Web” and “104 Tutoring” of 104 Co. to the program of NTUDOCTOR’s website. Such design led to the ease and promptness for web users to find a specific webpage of NTUDOCTOR’s website when they keyed in the aforementioned keywords into the search engine. In addition to this, NTUDOCTOR also designed another new webpage (http://www.ntudoctor.com.tw/new-ntudoctor/tutorall/index.asp), the representations “104 Tutor Nationwide DOCTOR TUTOR” and “104 NTUDOCTOR Tutoring Center” were separately posted on the said webpage and the web page title at the top of browser. The intention of the said webpage’s design was to increase the number of person visiting the NTUDOCTOR’s website, rate of exposure and trading opportunity through search engine. Such conduct was an attempt to free ride the goodwill of 104 Co. and exploited the efforts of 104 Co., hence, it is ethically reprehensible in business competition and has violated the provision of Article 24 of the Fair Trade Law.
2. It is found that NTUDOCTOR has made representations of “the nation’s largest tutoring network” and “NTUDOCTOR Tutoring Center is the nation’s largest tutoring web” on its webpage in September 2004. NTUDOCTOR argued that it has searched from the websites and found there were five tutoring websites provided statistics of their tutors. After comparing these statistics with the total tutors from its center, NTUDOCTOR thus has made the aforementioned representations. As for the 104 Tutor Web of 104 Co., no comparison can be made because the webpage of 104 Co. did not provide any tutor statistic. However, it is found that there are many enterprises engaged in domestic tutor network. When NTUDOCTOR published the aforementioned webpage advertisement, it did not obtain the objective and concrete statistics of tutors for each domestic tutor network. NTUDOCTOR only provided total tutors of five tutor networks that it can find, hence, it is really difficult to deem that NTUDOCTOR already has concrete and objective statistics that were able to prove that it was “the nation’s largest tutoring network”. Furthermore, the 104 Co. has presented a statistical data of tutors at that time, showing that there were 98,816 tutors for 104 Co., and NTUDOCTOR only has 29,688 tutors at the same time. The number of tutors for 104 Co. was far greater than that of NTUDOCTOR. It is more evidence that the credibility of the representations of NTUDOCTOR’s advertisement in this case is questionable. The operating scales of network tutor agents and its number of tutors have always been the important reference data when enterprises strive for the opportunity of electronic commerce trading. NTUDOCTOR confessed that it was unable to know the number of tutors for the “104 Tutor Web” of 104 Co., and did not state clearly in the webpage the basis of its comparison and the sources of the relevant statistics. It has regarded itself as “the nation’s largest tutoring network” based directly on the number of tutors for five tutor networks that it has investigated. The web users were unable to verify or confirm the accuracy of the aforementioned announcement, and they were misled into believing that NTUDOCTOR has the largest scale of operation in the business. Therefore, the announcements of “the nation’s largest tutoring network”, “NTUDOCTOR Tutoring Center is the nation’s largest tutoring web” in the said advertisement of NTUDOCTOR are false and misleading representations, in violation of the provision of Article 21, Paragraph 1 of the Fair Trade Law, applied mutatis mutandis to Paragraph 3.
3. The 104 Co. was founded in 1996 as the first domestic job search website in the Internet. After that, 104 Co. was granted the exclusive rights to use the series of “104” trademarks in 1998. Furthermore, the Intellectual Property Office, Ministry of Economics has deemed the “104” trademark as the well-known trademark. It is found that the operation of tutor agency websites were the major business items for both the complainant and the respondent. Thus the complainant and the respondent are competing with each other in the operation of tutor agency websites. While there was no relation at all between the content of NTUDOCTOR’s website and the words “104”, NTUDOCTOR has keyed in the symbol “104” of 104 Co. in metatag to exploit the said symbol so that the search engine can easily find NTUDOCTOR, and led the potential clients to visit its website. The conduct of NTUDOCTOR by means of free riding the effort of 104 Co. in market achievement, has increased the exposure rate or visiting rate of its website as well as to increase its trading opportunity, a conduct to exploit the efforts and free ride the business reputation of another. Such conduct was sufficient to affect the trading order that emphasizes on the efficient competition of price, quality and service, and obviously unfair to the honest competitors that have abided by the essence of fair competition. Therefore, it is ethically reprehensible in business competition. The conduct of NTUDOCTOR in this case has violated the provision of Article 24 of the Fair Trade Law.
4. Taking into consideration the motivation of the unlawful acts of NTUDOCTOR; the degree of the act’s harm, circumstances of the unlawful act, scale of the enterprise; and attitude shown for the act, NTUDOCTOR is ordered to cease the unlawful acts and a fine of NT$ 140,000 is imposed according to the anterior paragraph of Article 41 of the Fair Trade Law.

Summarized by: Tsai, Shueh-Chiu;
Supervised by: Wu, Lieh-Ling

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