The Intellectual Property Court rendered the 107-Min-Gong-Shang-1 Civil Decision of February 14, 2019 (hereinafter, the “Decision”), holding that the prohibited deceptive act in Article 25 of the Fair Trade Law, which provides: “Except as otherwise stipulated under this Law, an enterprise shall also not engage in any other deceptive or obviously unfair act sufficient to undermine trading order, either,” refers to any misleading trading act vis-a-vis a trading counterpart through active duping or passive concealment of important trading information. In addition, efficiency competition in the market should be considered. If messages on a price comparison platform are hyperlinked to other operators’ websites, the users should be able to learn about the sources of information with names and logos as differentiators; and, therefore, there is no deceptive act of active duping or passive concealment of important trading information. The above requirement is not violated.
According to the facts underlying this Decision, Appellant Company A asserted that a property price comparison website (hereinafter, the “Price Comparison Website”) set up by Appellee Company B had contained hyperlinks to Company A’s official website without Company A’s consent, massively expanded the contents of Company B’s websites, and obtained property object data developed by the Appellant to provide services through “House Comparison (Find) Consolidated Major Property Website Information for One-time Search of All Property Objects” and “Call Brokers.” Since this was unfair competition, a complaint was filed to seek compensation in accordance with Articles 25, 29 and 30 of the Fair Trade Law. The original trial court rendered a decision against the Appellant. Dissatisfied, the Appellants filed this appeal.
Article 25 of the Fair Trade Law provides: “In addition to what is provided for in this Law, no enterprise shall otherwise engage in any deceptive or obviously unfair act that is sufficient to undermine trading order.” This Decision pointed out: “This article is focused on prohibiting an enterprise from engaging any ‘deceptive or obviously unfair’ act ‘sufficient to undermine trading order.'” The so-called “deception” refers to a trading act vis-a-vis a trading counterpart through misleading means by actively duping or passively concealing important trading information. The so-called “obviously unfairness” refers to competition or commercial transactions through obviously unfair means.
This Decision affirmed the pro-competitive effect by holding that “the object information shown on the Appellee’s price comparison platform was provided to general public for use after public information in the Appellants’ webpages was consolidated” and “the public information from several real estate agents was still listed after appropriate objects were identified without covering up the contact information of the original real estate agents, and the consumers would decide the real estate agents of interest on their own and directly access the official websites of the real estate agents by clicking the links provided by the price comparison platform. On the contrary, this increased the transparency and circulation of the property object information and provided multiple choices to the consumers, promoted competition among real estate agents and indirectly enhanced the protection to the consumers.”
This Decision further generally considered that the Appellee’s price comparison platform did not copy or extract information from the webpages of the Appellants. Instead, it listed search results based on its predetermined criteria and provide the results for selection. Therefore, it is indeed difficult to conclude that there was anything obviously unfair due to the fruit of labor of others being inappropriately exploited. In addition, since hyperlinks to the Appellants’ websites were set up, the users should know that the Appellants were the sources of the information they obtained, and the “House Comparison” wording and the logo and features of the price comparison platform webpages are obviously different from the names and logos in the Appellants’ webpages and could serve as sufficient differentiators. Therefore, the Appellee did not engage in any deceptive act of actively duping or passively concealing important trading information. Since Article 25 of the Fair Trade Law was not violated, and there was no damage to others in ways that violate good social morals under the last part of Article 184, Paragraph 1 of the Civil Code, the Appellants’ appeal was rejected.