2016.10.20
Sean Liu
The Taipei High Administrative Court rendered the 105-Su-790 Decision of October 20, 2016 (hereinafter, the “Decision”), holding that the “misleading” advertisements prohibited under Article 21 of the Fair Trade Law refer to those which are likely to cause misconceptions or erroneous decisions among the general or relevant public, regardless of whether their indications or representations are consistent with the reality.
According to the facts underlying this Decision, A-Mart Taiwan, a hyper market operated by the Plaintiff, had purchased “Save and Safe” keyword advertising in the Google website and claimed that “A-Mart Online Shopping offers better bargains than Save and Safe” (hereinafter, the “Advertisement at Issue”). The Defendant held that the contents of the goods contained misleading representations and were misleading advertisements in violation of Article 21, Paragraph 1 of the Fair Trade Law. Therefore, the Defendant imposed a NT$500,000 fine in its original disposition. Dissatisfied, the Plaintiff brought this administrative action.
According to the Decision, the “misleading” advertisements prohibited under Article 21 of the Fair Trade Law refer to those which are likely to cause misconceptions or erroneous decisions among the general or relevant public, regardless of whether their indications or representations are consistent with the reality.
It was further pointed out in the Decision that the claim that “A-Mart Online Shopping offers better bargains than Save and Safe” did not specifically indicate the comparative basis, even though this generally means less spending and better services. The Defendant cited the prices of specific goods as examples to show that since it was not true that goods purchased in A-Mart Online Shopping were always cheaper than those purchased in Save and Safe, it was difficult to justify that better bargains was offered. In addition, the Plaintiff’s 24-hour speedy delivery service was constrained by areas and order timing. For purchasers who do not meet the delivery terms, it can hardly be concluded that the Plaintiff’s delivery speed was definitely faster than that of Save and Safe and offered better bargains. Since it was held that the original disposition was not erroneous in finding the Advertisement at Issue was misleading and imposing a fine, the Plaintiff’s complaint was dismissed.