萬國法律事務所

The Swiss enterprise Davidoff filed a complaint with the Fair Trade Commission against the Rong San Lin Enterprise Co., Ltd. (RSL, in Chinese: 瓏山林公司), alleging that the Chinese title of RSL’s construction project, entitled The Mansion in English and瓏山林極品大衛朵夫 in Chinese, contained reference to “Davidoff” in Chinese (大衛朵夫) which free rides on the goodwill of the Swiss enterprise in violation of article 24 of the Fair Trade Act (FTA) with respect to obviously unfair conducts which may affect trading order. The Supreme Administrative Court (SAC) affirmed of late the defeat of the Swiss enterprise.

In 2006, the Swiss enterprise filed a complaint against RSL for using “Davidoff” in Chinese (大衛朵夫) in the name of a construction project on the basis of article 24 of FTA, which states that “no enterprise shall otherwise have any deceptive or obviously unfair conduct that is able to affect trading order.” The Swiss enterprise then initiated administrative proceedings against RSL where the Taipei High Administrative Court (HAC) decided against the Swiss enterprise. The Court held that although the “The Mansion” project (瓏山林極品大衛朵夫 in Chinese) contained the same words as “Davidoff” in Chinese, the promotional materials such as advertising and billboards bore 瓏山林極品 and the English project name “The Mansion” and not “Davidoff”. Secondly, RSL is in the business of construction and the Swiss enterprise is in the business of the distribution of tobacco products, which are substantially dissimilar and the consumers are not likely to confuse the two companies. Further, the words大衛朵夫in Chinese originates from the Russian cellist Karly Davidov and Davidov is a western family name, which can all be translated to大衛朵夫 in Chinese. Pursuant to the allegations of RSL, the decision to adopt大衛朵夫 for advertising is to promote the artistic style of the architecture through a classical musician and not to free ride on the Swiss enterprise’s goodwill.

The Swiss enterprise appealed the decision of the HAC to the SAC which ultimately rejected the appeal on the grounds that the Swiss enterprise failed to raise an error in the interpretation or application of the law in the initial judgment.