[Article / Unfair competition law] Remedies for Indications Misleading as to Quality, etc. (足立勝, Patent Supplement, October 2023)
Updated: 4 hours ago
Article information
Categories: Unfair competition law
Topics: Misleading indications of quality / Injunctions / Damages
Published on this website: 2026-09-29
[Article / Unfair competition law] Remedies for Indications Misleading as to Quality, etc.—Including a Comparison with Similar Provisions in the Act against Unjustifiable Premiums and Misleading Representations and the Antimonopoly Act (足立勝, Patent Supplement, October 2023)
1. Comparison with the Act against Unjustifiable Premiums and Misleading Representations and the Antimonopoly Act
(1) Act against Unjustifiable Premiums and Misleading Representations (Article 5, items (i) and (ii))
Misleading representations concerning quality or advantages are regulated, but they are mainly subject to administrative dispositions, and claims for injunctions by business operators are not contemplated.
(2) Antimonopoly Act (Article 19; paragraph 8 of the General Designation)
“Deceptive customer inducement” is regulated.
A claim for an injunction (Article 24) is possible, but there is a high hurdle of “substantial harm.”
(3) Unfair Competition Prevention Act (Article 2(1)(xx))
Injunctions (Article 3) and damages (Article 4) sought by competitors are recognized, and these play a central role as private-law remedies.
Injunctions and damages: For an injunction (Article 3), a “likelihood of misleading” is sufficient, but damages (Article 4) require intent or negligence. In cases involving comparative advertising and the like, there are cases in which, even where the unreasonableness of experimental results is established, negligence on the part of the advertiser is not recognized and damages are denied (such as the xylitol gum comparative advertising case).
2. Interpretation of “quality” and “content” and the criteria for determination
The position of the prevailing view and case law is that the matters listed in item (xx) are an “exhaustive enumeration.” However, what is included in “quality and content” has been interpreted flexibly in accordance with the actual circumstances of transactions.
Criterion for determination: “Where, under the specific actual circumstances of transactions, consumers clearly recognize the indication as relating to the quality, content, or the like of the goods, and, as a result, it becomes an important criterion for selecting goods to the same extent as indications of quality, etc. inherently provided for in item (xx), it is appropriate to interpret the indication as falling within the scope of regulation under item (xx).”
★ What is important is whether consumers regard the indication as “part of the quality” and make it a decisive factor in purchasing.
Requirement of objectivity: “It should be said that the subject matter of the misleading indication is contemplated to be a fact whose truth or falsity can be objectively verified and established, and it is appropriate to interpret matters such as sayings or traditions that are not based on objective materials, and that consumers also recognize as such, as falling outside the scope.”
Indications at the level of “tradition,” whose truth or falsity is difficult to verify, tend, in principle, to be regarded as outside the scope of regulation under item (xx).
3. Applicability of “quality and content” in major court decisions
In court decisions, what falls within “quality and content” under item (xx) (including the former provisions) is determined individually.
Japanese original on LinkedIn: https://www.linkedin.com/feed/update/urn:li:activity:7510496661081866240/
English translation of the Japanese article.
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