Fair Trade Commission Disposal Directions (Guidelines) on the Reviewing of Cases Involving Enterprises Issuing Warning Letters for Infringement on Copyright, Trademark, and Patent Rights

Passed by the 288th Commissioners' Meeting on May 7, 1997
Promulgated by Order (86) Kung Fa Tzu No. 01672 on May 14, 1997
Article 6 amended by the 397th Commissioners' Meeting on June 16, 1999
Article 3 and 4 amended by the 416th Commissioners' Meeting on October 27, 1999
Promulgated by Order (88) Kung Fa Tzu No. 03239 on November 9, 1999
Article 10 added and Article 2 amended by the 478th Commissioners' Meeting on January 4, 2001
Promulgated by Order (90) Kung Fa Tzu No. 00139 on January 15, 2001
Title amended by the 688th Commissioners' Meeting on January 13, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940001278 on February 24, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940006976 on August 26, 2005
Amended by the 721st Commissioners' Meeting on September 2, 2005
Promulgated by Order (94) Kung Fa Tzu No. 0940007480 on September 16, 2005
Article 2 amended by the 792nd Commissioners' Meeting on January 11,2007
Promulgated by Order (96) Kung Fa Tzu No.0960000622 on January 23, 2007
Amended by the 807th Commissioners' Meeting on April 26, 2007
Promulgated by Order (96) Kung Fa Tzu No.0960003846 on March 8, 2007
Amended by the 950th Commissioners' Meeting on January 19, 2010
Promulgated by Order (99) Kung Fa Tzu No.0990000718 on January 28, 2010
Amended by the 1057th Commissioners' Meeting on February 8, 2012
Promulgated by Order Kung Fa Tzu No. 1011560318 on March 12, 2012, and made retroactive to February 6, 2012
Amended by the 1213rd Commissioners' Meeting on February 4, 2015
Promulgated by Order Kung Fa Tzu No. 10415601194 on February 16, 2015
Amended by the 1258th Commissioners' Meeting on December 16, 2015
Promulgated by Order Kung Fa Tzu No. 1041561063 on December 24, 2015
Amended by the 1692nd Commissioners' Meeting on March 20, 2024
Promulgated by Order Kung Fa Tzu No. 1131560137 on March 29, 2024

(Purpose)
The Fair Trade Commission (hereinafter "the Commission") adopts the Guideline in order to ensure fair competition among enterprises, to maintain trading order, and to effectively handle the abusive uses of copyright, trademark, or patent rights and thus constituting restraint on competition or unfair competition, through inappropriate issuance of warning letters to other persons alleging that the competitors have infringed copyright, trademark, or patent rights.
(Definitions)
The "act of an enterprise issuing a warning letter" in these Guidelines refers to an enterprise taking one of the following measures to inform its own or another enterprise's trading counterparts or potential trading counterparts that another enterprise infringes its copyrights, trademarks or patents:
(1) a warning letter;
(2) a notification letter;
(3) an attorney letter;
(4) an open letter;
(5) an advertisement or public notice;
(6) Other written or electronic documents to inform its own or another enterprise's trading counterparts or potential trading counterparts.
(Acts Constituting a Proper Exercise of Rights Pursuant to the Copyright Law, Trademark Law, and Patent Law … 1)
Issuance of a warning letter by an enterprise after taking one of the following procedures is a legitimate practice according to the Copyright Act, Trademark Act or Patent Act:
(1) Acquiring the decision of a court of first instance confirming copyright, trademark or patent infringement;
(2) Achieving mediation through a copyright review and mediation committee and copyright infringement confirmed by a court;
(3) Having the proof of patent infringement evaluated by a professional institution and at the same time obtaining the technical evaluation report while it is utility model patent; and also notifying the manufacturers, importers or agents involved in the infringement to cease the infringement before or when issuing the warning letter.
An enterprise failing to issue the infringement cessation notification stated in Subparagraph 3 of the preceding paragraph but having taken the right to a remedy procedure, done its best to fulfill the duty of care, or informed parties confirmed as physically impossible or to be notified of the enterprise’s awareness of the infringement is considered having taken the procedure to issue the infringement cessation notification.
(Acts Constituting a Proper Exercise of Rights Pursuant to the Copyright Law, Trademark Law, and Patent Law … 2)
For an enterprises that has only issued warning letters after carried out the following procedures shall be considered as properly exercising its rights pursuant to the Copyright Act, Trademark Act, or Patent Act:
(1) Notify the allegedly infringing manufacturer, importer, or agent to request cease of infringement beforehand or simultaneously with the issuance of warning letter;
(2) State clearly the precise content and scope of copyright, trademark or patent rights, and the concrete facts of infringement in the warning letter (for example, the time and place for the rights at issue, the production process, uses, sale or import), so that the receivers of letters have sufficient knowledge that the rights at issue are possibly being infringed.
(3) When a utility model patent is involved, the utility model technical evaluation report shall be presented before issuance of the abovementioned notification or warning letter.
An enterprise that fails to give notification and request cease of infringement as stipulated in Subparagraph 1 of the preceding paragraph may nevertheless be considered as have already carried out the procedure of making cease of infringement notification if the enterprise has taken procedures of legal remedy beforehand, or exercised all reasonably possible due diligence on the notification or if such notification were objectively impossible, or there are concrete evidences to prove that the party being notified has already known about the infringement controversy.
(Penalty)
The act of issuing a warning letter by an enterprise without adopting the preliminary procedures set forth in the provisions of Articles 3 and 4 shall be deemed a violation of the Article 25 of the Fair Trade Law if such an act is deceptive or obviously unfair and sufficient to affect trading order.
Though the issuing enterprise has adopted the preliminary procedures set forth in the provisions of Article 3 or 4, if the content of a warning letter involving in incidents of competition restraint or unfair competition conducts, the act of issuing a warning letter will be examined on a case-by-case basis for any violation of the Fair Trade Law.
(Guidelines also apply to inappropriate issuance of warning letters concerning infringement by enterprises at different stages of production/sales)
If an enterprise inappropriately issues a warning letter indicating that copyright, trademark, or patent had been infringed by a non-competing enterprise, i.e. enterprise not at the same stage of production/sale as the issuing enterprise, and thus has resulted in competition restraint or unfair competition, these Guidelines shall also apply.