[2] Where a product is produced and sold using a product label identical with or similar to a product label that acquired well-knownness, whether the product constitutes an unfair competition act under Article 2 subparagraph 1 of the Unfair Competition Prevention and Trade Secret Protection Act even if the product is different from the product label that acquired well-knownness (affirmative)

[3] Whether Article 15 of the Unfair Competition Prevention and Trade Secret Protection Act applies to a case where the purpose of trademark registration is not to distinguish one's goods from another's goods, but to gain profits by causing confusion with another's goods by using a trademark identical or similar to another's trademark widely recognized in Korea (negative)

[2] Where goods are produced and sold using a product label identical with or similar to the product label which has acquired well-knownness, even if one company's production and sale of various other goods over several different industrial fields is generalized in light of the modern industrial structure, it may cause confusion as to the origin of the goods by recognizing that the product is produced and sold by the owner of the product concerned or by a person in a special relationship with him/her according to the use and sale situation of the product. Thus, it constitutes an unfair competition act under Article 2 subparagraph 1 of the Unfair Competition Prevention Act.

[3] Article 15 of the Unfair Competition Prevention Act provides that the provisions of other Acts shall not apply to the case where there are provisions different from the Unfair Competition Prevention Act, such as the Trademark Act, but the provisions of other Acts shall not apply to the case where the registration of trademark right is not intended to distinguish one's own goods from another's goods, and if trademark right is acquired in the form of a trademark for the purpose of making profits by making ordinary consumers confused with another's goods using a trademark identical or similar to another's trademark widely recognized in the Republic of Korea, which is not intended to distinguish another's goods, the application for registration of the trademark itself is for the purpose of unfair competition. Thus, even if a trademark was in the appearance of exercise of right for domestic affairs,

1. On the first and second grounds for appeal

Article 2 subparagraph 1 of the Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 6421, Feb. 3, 2001; hereinafter the same shall apply) provides that "trademarks and trade names widely known in the Republic of Korea" are not required to be known to all persons across the territory of the Republic of Korea, but are sufficient to the extent known among traders or consumers within a certain domestic area (see, e.g., Supreme Court Decisions 94Do399, Jul. 14, 1995; 96Ma217, May 13, 1996). In a case where a product is produced and sold using a product mark identical or similar to a product mark so widely known, even if the product is produced and sold using another product mark that has acquired its well-knownness, it constitutes an unfair competition act of Article 250 (see, e.g., Supreme Court Decision 90Da14809, Feb. 29, 192).

Examining the reasoning of the judgment below in light of the above legal principles and records, in light of the development process of the character of this case as shown in the judgment, domestic period of use, sales record, domestic handling point of the character of this case, the degree of product advertisement by domestic users of the character of this case, and international designation limit of the character of this case at the time of application for the trademark of this case, the character of this case was already widely known to Japan as well as Japan at the time of application for the trademark of this case, and at least at least at the time of the closing of argument in the court below, the manufacturing and sale of the article attached with the drawing of the separate drawing of the court below similar to the character of this case, and therefore, the defendant's act of manufacturing and selling the character of this case to consumers or the defendant's product of this case caused misconception or confusion about its source by raising that there is a business relationship with the plaintiff who operates the business of commercialization of the character of this case. Thus, the court below did not err in the misapprehension of legal principles as to the act of unfair competition as to the product of this case.

2. On the third ground for appeal

Article 15 of the Unfair Competition Prevention Act provides that the provisions of other Acts shall not apply to cases where there are provisions different from the Unfair Competition Prevention Act, such as the Trademark Act, and the provisions of other Acts shall apply, but if trademark rights are acquired in the form of a trademark for the purpose of making profits by using a trademark identical or similar to another person's trademark widely recognized in Korea, not to distinguish one's own goods from another's goods, and then causing confusion with another's goods, the purpose of application for trademark registration itself is unfair competition. Thus, even if a trademark is recognized as a type of exercise of domestic right, it is an abuse or abuse of the Trademark Act, and it cannot be recognized as a legitimate exercise of rights under the Trademark Act. Thus, Article 15 of the Unfair Competition Prevention Act shall be excluded (see, e.g., Supreme Court Decisions 92Do2054, Nov. 7, 195; 98Da49142, May 12, 200).

According to the reasoning of the judgment below, on April 3, 1982, the court below held that even if the trademark used by the defendant is a registered trademark, its use shall not be protected as an abuse of trademark right as an owner of the trademark right, and there is no error in the misapprehension of legal principles as to abuse of trademark right, and there is no error in the misapprehension of legal principles as to abuse of trademark right.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)