On December 24, 2015, the Taiwan Fair Trade Commission ("FTC") issued a 6-item full text of amendment by Order Pub-Law No. 1041561063, effective as of the same day.

I. Purposes

To protect fair competition among enterprises, maintain trading order, and effectively handle cases where enterprise's abuse of copyright, trademark right or patent right causes restrictive or unfair competition by improperly sending warning letter accusing competitors of infringement to its copyright, trademark right or patent right, the Fair Trade Commission (hereafter, the "FTC") hereby stipulates the Guidelines.

II. (Definitions of Terms and Applicable Objects)

The act of enterprise's issuance of a warning letter referred to in the Guidelines means that the enterprise dispatches information to trading counterpart(s) or potential trading counterpart(s) of itself or the other enterprise(s) in the following way with respect to the other enterprise's infringement to its copyright, trademark right or patent right:

  1. Warning Letter;
  2. Cease-and-Desist Letter;
  3. Lawyer's Letter;
  4. Open Letter;
  5. Advertisement and Announcement;
  6. Other written notices that are sufficient to have the trading counterpart(s) or potential trading counterpart(s) of itself or the other enterprise informed.  

III. (Proper Acts of Exercising Rights in Accordance with the Copyright Act, Trademark Act or Patent Act, Part I)

An enterprise which issues a warning letter only after one of the following procedures to verify thefacts of infringement to its right will be deemed as conducting a proper act of exercising its rights in accordance with the Copyright Act, Trademark Act or Patent Act:

  1. Determination by a first instance ruling of the court that the copyright, trademark right or patent right has indeed been infringed;
  2. Holding by the Copyright Review and Mediation Committee that the copyright has indeed been infringed;
  3. That the enterprise has sent infringement potentially infringing article to a professional institution for characterization and obtained a characterization report, and has demanded the potentiallyinfringing manufacturer, importer or agent prior to or at the mean time as sending the letter to cease such infringement act. In the case where the enterprise fails to perform the notice pursuant to thelatter half of Paragraph 1, Item 3, but the enterprise has taken remedial procedure in advance, the enterprise has fulfill reasonable duty of care, the notice has becomes actually impossible, or there are substantial evidence sufficient to indicate that the party that should be informed of has known thefact of infringement, the procedure of said notice shall be deemed as has been performed.

IV. (Proper Acts of Exercising Rights in Accordance with the Copyright Act, Trademark Act or Patent Act, Part II)

An enterprise which issues a warning letter only after the following procedures to verify the fact of infringement to its right will be deemed as conducting a proper act of exercising its rights in accordance with the Copyright Act, Trademark Act or Patent Act:

  1. The enterprise has demanded the potential infringing manufacturer, importer or agent prior to or at the mean time as sending the letter to cease such infringement act.
  2. The enterprise has stated clearly in the warning letter the definite contents and scope of copyright, trademark right or patent right, and the specific facts of infringement (such as when, where and how the infringing article is manufactured, used, sold or imported, etc.), so as to have the recipient have sufficient information to know the fact of potential infringement.

In the case where the enterprise fails to perform the notice pursuant to Paragraph 1 of precedingItem, but the enterprise has taken remedial procedure in advance, the enterprise has fulfill reasonable duty of care, the notice has become actually impossible, or there are substantial evidence sufficient toindicate that the party that should be informed of has known the fact of infringement, the procedure of said notice shall be deemed as has been performed. V. (Legal Effects)

In the case where the enterprise fails to perform the preliminary proceedings set forth in Item III or IV but directly issues the warning letter as a deceptive or obviously unfair manner that is sufficient to affect the trading order, this will constitute a violation against Article 25 of the Fair Trade Act.

In the case where the enterprise has performed the preliminary proceedings set forth in Item IV prior to the warning letter but the contents enclosed therein involves circumstances of restrictive or unfair competition, the FTC will review on the case-by-case basis to determine whether the enterprise violates the provisions under the Fair Trade Act.

VI. (The Guidelines also apply to the circumstance where the enterprise performs an improper issuance of warning letters accusing another enterprise, which is not competing at the same production and/or marketing stage,  of infringement)

In case where the enterprise improperly issues a warning letter accusing another enterprise that is not competing at the same production and/or marketing stage of infringement to its copyright, trademark right or patent right, and thus causing the circumstance of restrictive or unfair competition, the Guidelines will be also applicable.

[Data Source: FTC Official Website]