| Summary: | 碩士 === 國立政治大學 === 經營管理碩士學程(EMBA) === 96 === Every time when Author undertakes unfair competition disputes between well-known enterprises arisen out of advertising and marketing, the question the Author will ponder over and over is: with respect to the comparative advertising, in terms of product comparison and information disclosure with other rivals, to which extent the comparative advertising will be the most beneficial advertising to the consumers and the most impartial advertising to the rivals. In other words, to which extent can “comparative advertising” be used appropriately, on one hand complete goals the original marketing was intended to achieve, bring sufficient and necessary consumption information to the consumers, on the other hand take into account of fairness criterion under competition law without application of technique beyond its original purpose which would cause damage to the rivals. Then the next question is: whether the existing Fair Trade Law has adequately set forth said criterion?
Based on the above goals, from respective viewpoints in marketing management, fair trade and legislation precedent of competition laws of major countries, the author, through extensive probing into past documentary records and reviews of past researches related to comparative advertising, realized that researches on “unsafe territory” and “safe territory” to show creativity of comparative advertising in past documentary records are not sufficient. Therefore, the author has adopted case method and document analysis used in qualitative research. From among the relevant cases handled by the Fair Trade Commission between 1992 and 2007, the author has chosen twelve distinctive cases, aiming to probe into criterion for determination of violation of comparative advertising by Fair Trade Commission of the ROC, and further verification of the differences between unlawful comparative advertising and creative comparative advertising through study and analysis of disposition or non-disposition decision of each individual case.
Upon review of administrative interpretations rendered by the Fair Trade Commission towards said twelve distinctive cases, the author realized that rules governing disposition of comparative advertising by the Fair Trade Commission has taken shape. First of all, when a comparative advertising breaches either the “principle of truthfulness”, the “principle of objectiveness” or the “principle of information disclosure”, the comparative advertising will become an unreal, non-objective or non-disclosed comparative advertising (or both or all), some “illegal elements” have occurred, which may constitute violation of law, this forms the first proposition of this thesis. Secondly, the Fair Trade Commission has clearly announced “safety areas” of content or manner of the comparative advertising, the author names this discovery as “more abstract more safe principle”, and believe this is the area where comparative advertising shall exert its best effort to show its creativity, which forms the second proposition of this thesis.
The author expects that future researchers will be able to create hypotheses, examine and verify two propositions this thesis have already built up, in order to investigate its thoroughness and correctness, so that enterprises could bravely demonstrate its creativity when applying comparative advertising for the marketing.
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