Three Recent Decisions on Unfair Competition

Abstract

Unfair Competition Prevention Act Sec. 2 (1) (xii), (xiii), Antimonopoly Act Sec. 19,

Act on Free Gifts and Misleading Representations Sec. 4 (2), Civil Code Sec. 709 – “Kojima”

1. The advertisement “We sell cheaper (or make it cheaper) than at Yamada’s” (a next-door competitor) is neither misleading nor improper where the statement is true for the majority of goods on offer.

2. Misleading indications on price are not actionable under the Japanese Unfair Competition Prevention Act.

Tokyo High Court, 19 October 2004

Yamada v. Kojima

Act Concerning Prohibition of Private Monopolization and Maintenance of Fair Trade, Secs. 24, 19, 2(9)(ii) and (iii); General Guidelines on Unfair Trade Practices, Secs. 9, 6 – “Yu-Pack”

1. Undue customer inducement requires the offer of unjust economic benefits.

2. Sales below cost require the offer at a price lower than the “costs incurred in said supply”, rather than the market price.

3. Evaluation of wrongdoing also requires taking into account the affected party’s market share.

Decision of the Tokyo District Court, 19 January 2006

Yamato Holdings K.K. v. Japan Post

Unfair Competition Prevention Act Sec. 2(1)(iii) – “Shoulder Hip Belt”

A claim against the slavish imitation of the configuration of goods requires an achievement based on own efforts of time and labour and must fail where the configuration was copied from others.

Tokyo District Court, 26 April 2006

Doria v. Amuse