YOYO Marketing Co., Ltd.

Case:

Key Words:

counterfeit, free ride, diaper

Reference:

Fair Trade Commission Decision of January 4, 2007 (the 791st Commissioners' Meeting); letter (96) Kung Er Tzu No.960000165 issued on January 8, 2007

Industry:

Wholesale of Other Household Appliance and Supplies (4569)

Relevant Laws:

Article 20 and 24 of the Fair Trade Law

Summary:

1. The complainant of this case claimed that YOYO Marketing Co., Ltd. (hereinafter called "YOYO") counterfeited the appearance and symbol of its product "YOYO Diaper" and caused confusion to the consumer regarding the source of products. Such act of counterfeiting the appearance and symbol of another's product was obviously an attempt to free ride on another's goodwill and exploit another's efforts, and was sufficient to affect market trading order in violation of the Fair Trade Law.
2. Findings of FTC after investigation: The name and image of "YOYO Diaper" sold by the complainant are registered trademark authorized for use with an infant's portrait as the major part of the appearance. The product is sold in different sizes, which are S – 70 diapers, M – 60 diapers, L – 54 diapers, and XL – 48 diapers, and is NT$420 per bag. The name and image of "PROGEN YOYO Diaper" are also registered trademark authorized for use. YOYO uses a blue kitten as its major part of the appearance and the character in its marketing campaign and advertisement. This product is sold in sizes, M – 66 diapers, L – 57 diapers, and XL – 51 diapers, and is NT$269-279 per bag. After comparing with other similar products in the market, both products have the similar package shape and material, which are commonly used by the businesses for such products in the market.
3. Grounds for no disposition:
   1. The complaint regarding the counterfeit of product name and symbol shall be a dispute of registered trademark and shall be subject to the Ministry of Economic Affairs, the competent authority, upon the conclusion drawn by both the FTC and the Ministry of Economic Affairs on August 20, 1992. The Fair Trade Law shall not be applicable.
   2. The package and appearance of the complainant's product, YOYO Diaper, has the similar shape and material used by other diaper products in the market. The relevant product information, descriptions of product features, and infant's portrait shall not be able to represent such a product or its source. There is also no other relevant evidence to prove that the product symbol has been commonly known by the relevant enterprises or consumer. Therefore, it is difficult to determine that YOYO has violated Article 20(1)(i) of the Fair Trade Law by counterfeiting the appearance and symbol of "YOYO Diaper" or causing confusion to the product source.
   3. It was also found that though both YOYO Diaper and YOYO's PROGEN YOYO Diaper use similar packaging design that uses rectangular soft plastic bags and is similar to all other baby diaper products in the market, both products give different exterior impressions using different fonts, images, and colors. YOYO uses the symbol that allows the consumer to easily identify the product source and employs blue kitten as the cartoon character in its marketing activities and complimentary items for its promotion. Therefore, it is difficult to say that YOYO has violated Article 24 of the Fair Trade Law by improperly counterfeiting the appearance and symbol of the complainant's product or free riding on another's goodwill and exploit another's efforts.

Appendix:
YOYO Marketing Co., Ltd.'s Uniform Invoice Number:

Summarized by Peng, Wen-Huei; Supervised by Wu, Pi-Ju