Formosa Transnational - Taiwan
According to Paragraph 1, Article 15 of Taiwan’s Code of Civil Procedure, an action may be initiated in the court of the location where the tortious act occurred. The Taiwan Supreme Court has long interpreted the location where the tortious act occurred to include where the damages resulting from this act emerged. Therefore, both the courts at the seat of the act and in the location of the resulting damages have jurisdiction over copyright infringement cases, which fall under the category of tortious claims.
In a recent case the Supreme Court held that if a website owner located in a foreign country knows or should have known that Taiwan would be the major market of its online shopping business, and despite this knowledge engages in the sale of allegedly infringing products in Taiwan, the courts there will have international jurisdiction over the website owner as Taiwan will be considered to be the place where the result of damages emerged. In the case a Japanese toy company launched an online shopping website where the sale of products were aimed at Japanese customers and therefore the entire layout of the website including language, descriptions of products, service terms and conditions and contact information was in Japanese. However, when entering the website, there was a banner with a sentence in Chinese placed conspicuously on the top of the webpage, which invited overseas customers to access an associate website providing international shipping services. The allegedly infringing products were claimed by the plaintiff to be purchased from this associate website and shipped to Taiwan. As such, the Supreme Court justified the Taiwan court exercising jurisdiction over this tortious claim because the Japanese toy company, from the way it introduced the associate website on its webpage, should have known that Taiwan would be among one of its major e-commerce markets and the allegedly infringing products were said to be imported into Taiwan through this website.
Hence, strategically speaking, if a copyright holder attempts to bring a foreign website owner into the jurisdiction of Taiwan, it is important to obtain evidence proving the sale of allegedly copyright infringing products into Taiwan. On the other hand, to reduce the chances of a company’s online shopping business activity being subject to the international jurisdiction of the Taiwan courts, it is recommended that the website layout be designed in a way that separates the website owner from the overseas shipping service provider, where the latter inevitably needs to present its services in various languages to accommodate the demands of customers located in various regions. The website owner should refrain from conspicuously placing a link, written in a full Chinese sentence, which directs visitors to the website of an overseas shipping service provider. Rather, it is advised that such a link is written succinctly in one or two words or simply conveyed through the term ‘overseas shopping’, at the bottom of the webpage. Finally, measures that prove that the customer must specifically choose to enter an associate website should be implemented. For example, when customers access an associate website, a pop-up message could alert customers that they are about to visit a third-party website that is not controlled by the website owner and display a disclaimer, which states that the website owner is therefore not responsible for any transactions entered into between the third-party website and customers.