The Empirical Study on FTC Regulating Warning Letter and its Effect－The Suspense Effect
Yen Jung, Ho
Yeong Chin, Su
Shang Zhi, Liu
|關鍵字:||警告函;公平交易法第45條;司法院釋字第548號;懸疑效果;內容分析法;Warning Letters;Fair Trade Law Article 45;Judicial Yuan Interpretation No.548;Suspense Effect;Content Analysis|
To monitor and regulate the conduct of sending warning letters to other entities who may be in suspect of infringing copyrights, trademarks and patents by the oblige entity in a efficient and effective manner, the Fair Trade Commission of the Executive Yuan (“FTC”) has published the “Guidelines on the Reviewing of Cases Involving Enterprises Issuing Warning Letters for Infringement on Copyright, Trademark, and Patent Rights” to set up its regulating and administrative mechanism to the conducts. Though the constitutionality of this Guideline has been affirmed by No.548 Interpretations of Justices of the Constitutional Court, this Guideline still incurs many disputes both in the areas of jurisprudence and practice of Antitrust Laws. From our research on the relative legal literatures and records, we found that most of them are criticizing this Guideline mainly by way of the methods of literature analysis, comparative jurisprudence or case study. This essay argues that those criticisms did not touch the core issue of the Guideline. Regarding whether the antitrust law shall govern and involve in the management of the issued conduct, the preliminary presumption from FTC for the antitrust law shall involve this conduct is mainly based on that the conduct may result in possible damage on market competition.This essay also challenges this presumption. In practice, is it possible for the receiver of this warning letter might be threaten bypossible infringement liability and remove the suspected infringing products from shelf or refuse to sell such goods any more? That is, what is the probability of the so-called “suspense effect”? The essay shows it has not been verified in current literatures and records. This essay adopts the way of actual investigation to find out the probability of suspense effect to the warning letter to verify the legitimacy and soundness of the involvement of antitrust authority to the issued conduct. I will discuss the following topics in this essay in sequence on the description of conducts of Intellectual Properties Rights infringement: 1.Are related evidences to this infringement a compulsory attachment to the warning letter? 2.And the emotional impact to the receiver. Base on the research result to verify the effectiveness of controlling mechanism adopted by FTC. This essay shows that the probability of “suspense effect” is really high in most warning letter cases. Even the contemporary big enterprises nowadays have built up its standard operation process to deal with the possible infringement issues when they receive a warning letter. But this kind of management cannot be applied to most medium and small enterprises in Taiwan. From the aspect the legal purposes of Fair Trade Act to maintain a fair market competition, there is a room for the involvement of Fair Trade Act to the conduct. is the essay also shows that Clause 4 of the Guideline has stipulated that the sender of the warning letter has to clearly define the content, scope and specific facts about the infringement and notify the possible infringers prior or simultaneously to the sending of warning letter, these will help to reduce the suspense effect. From above mentioned assessments, the Guideline still can fulfill its regulation purposes. But what should not be ignored is the due process of sending warning letters regulated in the Guideline will not be chosen by most of senders, there would be a question mark to the actual regulation effect of this Guideline. The essay suggests that the FTC take a more complete and broad practical investigation and collect more data related to the actual economic activities, and then a proper legal suggestion can be provided for future amendment.
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