JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Takaaki Someya, Muneharu Yamamoto and Hiroaki Miyauchi, Ikeda & Someya
1.5 Pre-Approvals No prior approval from the government or other authorities is required to make “representations”. 1.6 Intellectual Property and Publicity Rights Intellectual property rights are protected by laws such as the Copyright Act; therefore, it should be noted that the use of the intellectual property can infringe those rights. While there are no specific laws concerning portrait rights, they are protected, allowing claims for damages or injunctions against infringement. 1.7 Self-Regulatory Authorities When a business operator (or a trade association) concludes or establishes an agreement or rules for preventing violation of the AUPMR and obtains approval from the Commissioner of the CAA and the JFTC, the business operator’s representation does not constitute misleading representation as long as it makes representation in accordance with the agree - ment or rule. The participation in the agreement is voluntary, and a business operator may freely withdraw from it. 1.8 Private Right of Action for Consumers Consumers can file a lawsuit against the business operator, claiming for damages based on tort, and claiming a refund based on the invalidity of the con - tract. A qualified consumer organisation can bring an injunc - tion and redress for damages to consumers. 1.9 Regulatory and Legal Trends A case was recently decided in favour of the business operator for the first time, in a lawsuit for the revoca - tion of an administrative disposition by the CAA, under the AUPMR. 1.10 Taste and Cultural Concerns There are no special concerns that advertisers should keep in mind. 1.11 Politics, Regulation and Enforcement The AUPMR was enacted in 1962 and was initially overseen by the JFTC. In 2009, oversight of the AUP - MR was transferred to the newly established CAA to
allow for more proactive enforcement against mis - leading representations to consumers. Since then, the number of enforcements concerning misleading representations has increased. Under the AUPMR, a surcharge was implemented in 2014, the stealth marketing regulation was imple - mented in 2023 and the commitment procedure was enacted in 2024.
2. Advertising Claims 2.1 Deceptive or Misleading Claims
The determination is based on whether the represen - tation indicates that the content (quality, standard, etc) of goods or services or the trade conditions of the transaction are significantly superior or more advanta - geous than they actually are. 2.2 Regulation of Advertising Claims As long as they fall under the definition of “represen - tations” referred to in 1.4 What is Advertising? , all representations are subject to regulation under the AUPMR. 2.3 Substantiation of Advertising Claims The AUPMR requires materials indicating reason - able grounds that support the representation, such as results obtained through testing and investigation, opinions of experts, expert organisations or special - ised institutions, or academic literature, and so on. The contents demonstrated in the materials need to be approximately aligned with the displayed effects of representation. 2.4 Product Demonstrations If the content of a demonstration indicates that the product or service is significantly superior to what it actually is, this may constitute a misleading represen - tation under the AUPMR. Additionally, if the advertiser is found to have been involved in determining the demonstration’s content without a disclosure, such as public relations (PR) – for instance, when requesting an influencer to perform the demonstration – it can be categorised as stealth marketing, which is prohibited under the AUPMR.
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