Hueia Yeha Enterprise Co., Ltd.

Case:

Key Words:

OSIM, massager, imitate, product appearance, functional shape

Reference:

Fair Trade Commission Decision of July 19, 2007 (the 819th Commissioners' Meeting) (Non-disposition)

Industry:

Retail Sale of Other Household Appliance and Supplies in Specialized (4749)

Relevant Laws:

Article20 and 24 of the Fair Trade Law

Summary:

1. This case was originated from the complaints filed by OSIM International Ltd. and OSIM GHC (Taiwan) Co., Ltd. (hereinafter jointly called "complainants") and the complaints stated briefly as follows: The product appearances of the foot massagers (HY-19934) of Hueia Yeha Enterprise Co., Ltd. (hereinafter called "complained") were the imitation of the product appearances of the complainants'iSqueez foot massagers, the appearance design, colors and the combination of patterns of the complainer’s products were identical to those of the complainants'products. The imitation resulted that the complainer’s products were mistaken for the complainants'products and the consumers were confused about which company manufactured which product. Furthermore, the complainer’s was actively exploiting the efforts of the complainants.

2. Findings of FTC after investigation:

   1. It was found that the upright triangle and shape of dual tank were the main characteristics of the appearances of complainants'iSqueez products. As the underlined function of such a product was to massage calves, ankles and feet simultaneously, in order to reach the said function, both legs of a user, from his feet to calves, all must be placed in the massager. In addition, the upright-triangular dual tank of such a product was designed on the basis of the shape of a human leg (foot) so as to enable both legs of a user, from his feet to calves, all to be placed in the massager, and hence simultaneously massage the said parts of a human leg. The upright triangle and shape of dual tank of this product possessed the functional shape; they did not manifest the origin of the product, however. In addition, the other brands of the foot massagers provided by the complainants, such as Azumi, Sampo, Thrive and Sanyo products, were all designed in the shape of upright-triangular dual tank – therefore we can see that the shapes of such products were designed on the basis of the functional needs, and the shape was not unique to a specific brand. As for the said appearance design (the height, width and the camber of the screen of the product), colors (the colors of the screen and dual tank) and the combination of patterns (the locations of the name of the product and of the trademark), these symbols were still not specially notable after viewing such a product as a whole; and they were insufficient to make related enterprises or consumers to recognize them as the manifestation of the trademark of the product.
   2. It was further found that, since the complainants'product appearances possessed the functional shapes, the complainants had no right to exclude other competitors from adopting the functional appearances of the same class in their products. In addition, other brands of foot massagers in the market also adopted similar shapes in appearance design; therefore the appearance of such a product was not competitively unique. In addition, it was found that there were no big differences between the complainants'claimed appearance design (the height, width and the camber of the screen of the product) and the combination of patterns (the locations of the name of the product and of the trademark) and the symbols of other brands of foot massagers on the market; the main color (the silver grey of the screen, the complainants'called it silver white) of the complainants'product was the color commonly used by other brands in such a type of products, for example, Thrive and Sanyo use similar colors in the front screens of their foot massagers (MD-6100 and.TS-620AA respectively).

   3. Grounds for non-disposition:

   1. The complainants'product appearances possessed functional shapes and did not manifest the origin of the products, they were not the symbols set forth in Article 20 of the Fair Trade Law, which provides that "symbols that are … commonly known to relevant enterprises or consumers." Therefore, it was not necessary to specially inquire whether "using in the same or similar manner "the product appearance of the complained further resulted in "causing confusion with such person's goods." Therefore, based on the existing evidence, it would still be difficult to find that the complained had acted in violation of Article 20 of the Fair Trade Law.
   2. As for the appearance design and combination of patterns of the complainants' products, these symbols were also similar to those of other brands of foot massagers on the market and the complainants also color their front screens in silver grey which were commonly used in such a type of the products. After the FTC’s observation of the appearance design of the complainants'products as a whole, the said design did not show the fact that the complained actively imitated the products of the complainants. In addition, the trademark on the complainer’s products was different from that on the complainants'products and this difference was sufficient for relevant enterprises or consumers to distinguish different products. In conclusion, it would be difficult to find that the complained had involved in imitating the product appearances of the complainants'products and being actively exploiting their efforts, in violation of Article 24 of the Fair Trade Law.

Summarized by Fong, Jyun-cyuan; supervised by Shen, Li-yu