1. In the dispositions Gong-Chu-Zi No. 111019 and No. 111020 issued on April 21, 2022, the Taiwan Fair Trade Commission (TFTC) held that Mobix Corporation and Kuo Brothers (hereinafter referred to as ”the Companies”) specifically designed the SEO webpage program with titles and languages advertising “products not sold on their website” constituted acts which are “otherwise have any deceptive or obviously unfair conduct that is able to affect trading order,” were in violation of Article 25 of the Fair Trade Act. Administrative fines of NT$800,000 and NT$2,000,000 were imposed respectively.

2. Facts of the Case:

The SEO webpage program specifically designed by the companies creates advertisement webpage titled “Summary of Hot-selling XX word-of-mouth Recommendations,” “Are you looking for XX? Recommending super-value XX. Open and transparent post-purchase product reviews. Fast shipping with a seven-day no-burden free return period,” “The XX that everyone is buying is available at (the website of the companies) …,” and presented such advertisements in search results. However, the related products (i.e., the aforementioned “XX”) were, as a matter of fact, not sold at the shopping website of the companies. That being said, the content as displayed in the search results misrepresented the facts. The TFTC then ordered the cease therefrom and imposed administrative fines pursuant to Article 25 of the Fair Trade Act.

3. Disposition Rationale:

（1） The TFTC reasoned that, in these cases, “the companies used the design of  webpage program to unfairly exploit the representation of others for the purpose of increasing the rate of visits paid to their own websites,” which were indeed  exploitations of the work of others. The TFTC further reasoned that since the companies’ websites were “shopping websites,” using a certain representation was not at issue (implying that its purpose was not to exploit the business reputation of others). Rather, the purpose was to build an appearance of “a shopping website with everything and with great bargain.”

（2） The companies’ shopping websites did not sell the “XX product” as purported by the titles and content of their advertisements. Hence, the companies’ websites caused “the consumers to not being able to obtain important transaction information from the aforementioned representation of XX on the shopping website through the links, resulting in necessary waste of time,” and “unfair interception of visitor traffic to other similar shopping websites.” In addition, the companies allowed the continuing occurrence and existence of such erroneous and misleading information without any prevention or correction, resulting in unfair competition through obviously unfair conducts that are being able to affect trading order.

4. Analysis:

（1） The cases involve the use of SEO techniques to improve search result ranking. Further studying the cases, the matter that should be closely evaluated is whether the act of “using the representations of others to form titles and content of advertisement which gave consumers the wrong impression that its shopping website was selling related products, resulting in the increase of visitors to its shopping website and transaction opportunities” constitutes unfair competition. Arguably, there is room for the discussion of false advertisements in the cases.

（2） The author argues that the issue should not be “the technique of using certain content (whether it is of products sold on the shopping website or not) or means to improve website ranking.” Rather, the issue should be “misleading consumers by false information.”

（3） Although the disposition rationale of the TFTC mentioned that these trading practices had the effect of “intercepting traffic to other websites,” the author argues that search result ranking per se already has the effect of causing lower ranked websites to have less traffic. Accordingly, the part that should be blamed for was the content of their website, not the SEO results. That being said, if any enterprise used the representation of others as their key word (or other content as determined by SEO), but the website did not show such representation or other information that have been used to mislead consumers, then, although SEO techniques helped them “intercept traffic to other websites” by moving their ranking higher, it did not pertain to unfair competition. (For relevant judicial opinions, see a judgment made by Intellectual Property and Commercial Court in 2020 Min Gong Shang Zi No. 1)