Intellectual Property Court has recently made detailed analysis regarding the legal judgment of the act of webpage redirection. In the 2017 Min-Shang-Su No. 3 Civil Judgment (September 29th, 2017), the Court deliberates whether such an act constitutes trademark infringement as well as whether it constitutes improper competition, after the fact is confirmed that the act of webpage redirection and its collateral acts were intentionally undertaken by the defendant’s online English tutoring website (hereinafter referred to as “Website B”) and the hyperlink directing to Website B is originally marked as a link to the plaintiff’s website (hereinafter referred to as “Website A”).
1.Such an act does not constitute trademark infringement
Regarding the issue of trademark infringement, the court holds that all the acts of infringement listed in Article 68 of Trademark Act shall meet the circumstance of “using” a trademark in relation to providing goods or services. The court also points out that, according to the provisions of Article 5 of Trademark Act, the“use of a trademark” means any of the listed acts, in the course of trade, where such trademark is capable of being recognized by relevant consumers as a trademark. Regarding the circumstance of this case, it was about the hyperlink on the internet, and its meaning was that the browser will link to the website content indicated by such hyperlink after the user clicks on the hyperlink, which only indicated such service’s address on the internet but not directly linked to the goods or services indicated by a trademark. Therefore, it did not meet the meaning of “use of a trademark”. Regarding the part of Subparagraphs 1 and 2 of Article 70 of Trademark Act, “using a trademark” is still a requirement in Subparagraph 1, and “knowingly using words contained in another person’s well-known registered trademark as the name of a company, business, group or domain or any other name that identifies a business entity” is the requirement of Subparagraph 2. However, in this case, the hyperlink was only used to indicate such service’s address on the internet, and no such identifying act existed. Therefore, the court holds that the act of website link redirection did not constitute the infringement of right of trademark in spite of the basis of the preceding Article 68 or Subparagraphs 1 and 2 of Article 70.
In addition, the plaintiff otherwise referred to the “Initial Interest Confusion” in U.S. law and claimed that it should be acknowledged and adopted by the laws of R.O.C. to reasonably protect the benefits of the proprietor of a registered trademark. The court holds that there is no need to acknowledge the theory of other country and barely apply the provision which does not meet the grammar of laws if there exists a proper legal mechanism which can protect the rights of the plaintiff.
2. Such an act constitutes improper competition
Regarding the issue related to the Fair Trade Act, the court makes analysis according to the provision “In addition to what is provided for in this Act, no enterprise shall otherwise have any deceptive or obviously unfair conduct that is able to affect trading order.” in Article 25 of Fair Trade Act. The court holds that the act of website link redirection in question redirected the hyperlink marked as the name of Website A on the webpage to Website B and forced the user who originally saw the name of Website A and intended to browse relevant information to redirect to Website B, which was in the nature of “deceptiveness”. In addition, the court otherwise considers that the internet traffic flow means important business opportunity of internet economy in the competition order of prosperously developing e-commerce market. Therefore, the court holds that the hyperlink in the nature of deceptiveness was sufficient to affect the trading order.
On the other hand, the court holds that it is important to contact consumers while selling goods, which is the basis resulting in consumers’ consuming willingness. The methods used to make consumers contact goods or services (or its information) should be the important item in the order of market competition, and it is also the item which shall be regulated by Fair Trade Act. Therefore, if any deceptiveness exists in the course of the indication of information, no matter in real world or online world, the same judgment should be made that it not only hinders the benefits of consumers but also hinders the order of market economy from developing properly. Therefore, the intentional act of website link redirection in such case should be deemed the breach of the provisions in Article 25 of Fair Trade Act, and it should also be deemed the infringement act violating a statutory provision enacted for the protection of others and therefore prejudice to others.
However, in this case, the court also clarifies that the simple act of website link redirection is not per se illegal because there exists proper method of use for the act of website link redirection. Nevertheless, for improper competition that exists in this case, it shall be banned.