The Supreme Court rendered the 106-Tai-Shang-1431 Civil Decision of April 25, 2018 (hereinafter, the “Decision”), holding that under Article 25 of the Fair Trade Law (hereinafter, the “Law”), an enterprise shall not engage in any deceptive or obviously unfair act sufficient to undermine trading order, and only entities engaging in act with a competitive objective would be subject to such requirement. Under Article 4 of the Law, “competition” refers to the winning of trading opportunities by at least two business entities through more favorable prices, quantities, quality, services or other terms. Therefore, when it appears that the system at issue was deployed to provide an integrated search platform for real estate rental or sales information, if the system at issue was not used to win trading opportunities for an intermediary thus engaging in act with a competitive objective, Article 25 of the Law does not apply.
According to the facts underlying this Decision, the Appellee was a real estate broker and the Appellant deployed the system at issue on the Internet to provide an integrated search platform for real estate sales information. Since the system adopted a membership system where the members could use certain search criteria (such as roads, door plate numbers, prices and sizes, types of real estate, floors and types of buildings, real estate broker brands, etc.) to perform searches and make comparisons. As a result, real estate sales information available in the official websites of major real estate brokers in Taiwan which meets the search criteria would be provided. It was held in the original decision that the Appellant had expanded the contents of its website by linking to the Plaintiff’s website without authorization. Since this violated Article 25 of the Fair Trade Law, it was ruled that the Appellant shall pay a compensation of NT$300,000 to the Appellee. Dissatisfied, the Appellant 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.” It was found in this Decision: “This is a general provision concerning unfair competitive acts with an aim to maintain means of free competition, establish market competitive order, control deceptive or obviously unfair acts sufficient to undermine trading order. Therefore, a person subject to such requirement should act with a competitive objective.” According to this Decision, with respect to the so-called competition, “Article 4 of the Law provides that ‘competition’ refers to the winning of trading opportunities by at least two business entities through more favorable prices, quantities, quality, services or other terms.”」
It was concluded in this Decision: “The system at issued deployed by the Defendant appears to be merely an integrated search platform for real estate rental and sales information. After obtaining information via this platform, a consumer is still required to access the website of a real estate broker and trade via such broker.” Therefore, since the Defendant did not use the system at issue to win intermediary trading opportunities, it is “questionable whether Article 25 of the Law applies due to the competition between the Appellant and the Appellee in the real estate brokerage market.” Since the original decision, which just generally stated that unfair competition had existed due to the existence of a certain degree of competition without specifying the competitive relationship, if any, between the parties, was questionable, the original decision was reversed and remanded.