1. (Purpose)

These Guidelines are enacted to ensure fair competition among enterprises, to maintain trading order, and to effectively handle the abusive uses of copyright, trademark, or patent rights and thus constituting unfair competition, through inappropriate issuance of warning letters to other persons alleging that the competitors have infringed copyright, trademark, or patent rights.

2. (Definitions)

The "act of issuing a warning letter by an enterprise" in these Guidelines means an enterprise, in addition to assert rights or request cease of infringement according to legal procedures, uses one of the following means to publicize to its own or another designated enterprise's trading counterpart or potential trading counterpart indicating that a particular competitor has act of disseminated information to infringe its copyrights, trademarks, or patent rights:
(1) a warning letter;
(2) a notification letter;
(3) an attorney letter;
(4) an open letter;
(5) an advertisement or public notice; or
(6) other written materials sufficient to inform its own or another enterprise's trading counterpart or potential trading counterpart.

3. (Acts Constituting a Proper Exercise of Rights Pursuant to the Copyright Law, Trademark Law, and Patent Law … 1)

The act of issuing a warning letter by an enterprise constitutes proper exercise of rights pursuant to the Copyright Law, Trademark Law, or Patent Law where the enterprise has issued the warning letter subsequent to confirmation, through one of the following procedures, that its rights have been infringed:
(1) copyright, trademark, or patent right infringement ruling has been rendered by a court of first instance;
(2) A determination of copyright infringement has been rendered by the Copyright Review and Mediation Committee after conciliation;
(3) the allegedly infringing article has been submitted for assessment by a professional infringement assessment institution and an assessment report has been obtained, and the potentially infringing manufacturer, importer, or agent has either been notified beforehand or simultaneously about the issuance of warning letter and is requested to cease such infringement.
An enterprise that fails to give notification and request cease of the infringement as stipulated in the posterior part of Paragraph 1, Subparagraph 3 may nevertheless be considered as have already carried out the procedure of making cease of infringement notification if the enterprise has taken procedures of legal remedy beforehand, or exercised all reasonably possible due diligence on the notification or if such notification were objectively impossible, or there are concrete evidences to prove that the party being notified has already known about the infringement controversy.

4. (Acts Constituting a Proper Exercise of Rights Pursuant to the Copyright Law, Trademark Law, and Patent Law … 2)

For enterprises that have only issued warning letters after carried out the following procedures to confirm its rights have been infringed, and furthermore do not have any incidents of violating Paragraphs 6 through 9, shall be considered as properly exercising its rights pursuant to the Copyright Law, Trademark Law, or Patent Law:
(1) Notify the allegedly infringing manufacturer, importer, or agent to request cease of infringement beforehand or simultaneously with the issuance of warning letter;
(2) State clearly the precise content and scope of copyright, trademark or patent rights, and the concrete facts of infringement in the warning letter (for example, the time and place for the rights at issue, the production process, uses, sale or import), so that the receivers of letters have sufficient knowledge that the rights at issue are possibly being infringed.
An enterprise that fails to give notification and request cease of infringement as stipulated in Subparagraph 1 of the preceding paragraph may nevertheless be considered as have already carried out the procedure of making cease of infringement notification if the enterprise has taken procedures of legal remedy beforehand, or exercised all reasonably possible due diligence on the notification or if such notification were objectively impossible, or there are concrete evidences to prove that the party being notified has already known about the infringement controversy.

5. (Failure to follow preliminary procedures under the provisions of Paragraphs 3 and 4 of these Guidelines)

An enterprise that issues a warning letter failing to follow the preliminary procedures set forth in Paragraph 3 or 4 of these Guidelines, depending on whether its conduct is a deceptive or obviously unfair conduct that is sufficient to adversely affect trading order, shall be judged according to provisions of Article 24 of the Fair Trade Law unless such enterprise presents an infringement judgment rendered by a court of first instance or a copyright infringement determination letter issued by the Copyright Review and Mediation Committee to the Commission prior to the Commission’s disposition.

6. (Elements constituting a violation of Article 19 of the Fair Trade Law)

Regardless of whether the issuing enterprise has adopted the preliminary procedures set forth in the provisions of Paragraph 4 hereof, the act of issuing a warning letter shall be deemed a violation of the provisions of Article 19, Subparagraph 1 of the Fair Trade Law if the purpose of the content in letter was to injure a specific competitor, the letter is capable of causing the competitor's trading counterparts to discontinue doing business with the specific competitor, and there is a likelihood of restraining competition or obstructing fair competition.
If the act by an enterprise in the preceding paragraph is to cause a competitor's trading counterpart to trade with the enterprise itself and is likely to restrain competition or obstruct fair competition, the act shall be deemed a violation of the provisions of Article 19, Subparagraph 3 of the Fair Trade Law.

7. (Requirements of a violation of Article 21 of the Fair Trade Law)

If the contents of a warning letter are false or misleading to another person with respect to the goods or services of the issuing enterprise, then regardless of whether the issuing enterprise has adopted the preliminary procedures set forth in the provisions of Paragraph 4, the act of issuing the warning letter shall be deemed a violation of the provisions of Article 21 (1) or 21, Paragraph 3 of the Fair Trade Law.

8. (Requirements of a violation of Article 22 of the Fair Trade Law)

If the contents of a warning letter are for the purpose of injuring a competitor, and the statements in the letter are false and are sufficient to cause damage to the business reputation of the competitor, then regardless of whether the issuing enterprise has adopted the preliminary procedures set forth in the provisions of Paragraph 4 hereof, the act of issuing the warning letter shall be deemed a violation of the provisions of Article 22 of the Fair Trade Law.

9. (Requirements of a violation of Article 24 of the Fair Trade Law)

If the contents of a warning letter meet one of the following criteria and are sufficient to affect trading order, then regardless of whether the issuing enterprise has adopted the preliminary procedures set forth in the provisions of Paragraph 4 hereof, the act of issuing the warning letter shall be deemed a violation of the provisions of Article 24 of the Fair Trade Law:
(1) The issuing enterprise clearly knows it neither has the copyright nor obtained trademark or patent legally.
(2) The scope of the copyright, trademark, or patent has been overstated or exaggerated by the issuing enterprise.
(3) Untrue statements are made implicitly indicating that a particular competitor or the competitors in general term in the market are illegally infringing the enterprise's copyright, trademark or patent.
(4) Other statements that are deceptive or obviously unfair are made.

10. (Guidelines also apply to inappropriate issuance of warning letters concerning infringement by enterprises at different stages of production/sales)

If an enterprise inappropriately issues a warning letter indicating that copyright, trademark, or patent had been infringed by a non-competing enterprise, i.e. enterprise not at the same stage of production/sale as the issuing enterprise, and thus has created unfair competition, these Guidelines shall also apply.