The Yongsan-gu Seoul Metropolitan Government OOOOO

Yongsan-gu Seoul Metropolitan Government ○○○○○

Attorney Kim Jong-young, and Quota in charge

① Even if the victim compliance 119 corporation did not independently use the service mark "com 119" only, the above service mark constitutes a business mark protected by the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act"). ② "com 119" is recognized as a distinctive trademark among the traders or users of the relevant industry. Thus, the court below erred by misapprehending the legal principles on "the above act of unfair competition" or "the act of unfair competition" under the Unfair Competition Prevention and Trade Secret Protection Act, and thereby acquitted the defendant of the facts charged.

2. Determination:

A. First, we examine the prosecutor's assertion that even if the victim did not use the service mark "com ○○ 119" alone, the above service mark constitutes a business mark protected under the Unfair Competition Prevention Act.

The unfair competition act under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act does not necessarily require the use of a trademark identical or similar to a registered trademark because it is different from the infringement of trademark rights. Any act which causes confusion with another person's goods by using a trademark identical or similar to another person's name, trade name, trademark, container or package of goods, or any other mark indicating another person's goods, regardless of whether the trademark is registered, or by selling goods using such a mark. Even if a trademark is not protected under the Trademark Act, if it is widely recognized domestically, it constitutes a product mark protected under the Unfair Competition Prevention Act (Supreme Court Decisions 2007Do9355, Dec. 28, 2007; 96Do2650, Dec. 12, 1997; 96Do2650, Apr. 1, 199).

23. This part of the Prosecutor’s assertion is with merit.

B. Next, we examine whether the above "com ○ 119" was widely known domestically at the time of the instant crime.

(1) Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act provides that "an act which causes confusion with another person's business facilities or activities by using a mark identical or similar to the name, trade name, or other mark widely known to the public in the Republic of Korea as one of the unfair competition acts." Here, "a mark indicating another person's business" refers to a case where customers or consumers widely recognize another person's business through it as being distinguished from other businesses within domestic discharge or within a specific scope and widely recognize a specific business through it. It does not include merely a descriptive expression or ordinary terms used in a normal sense, but even in such a case, it constitutes a business mark protected by the above law if customers or consumers are widely recognized as indicating a certain business for a long time. Further, whether it is "a mark indicating another person's business widely known to the public in the Republic of Korea" refers to the period, method, quantity of use, trade volume, scope of trade, etc., and whether it is objectively known to the general social norms, 209. 360. 197.

(2) Regarding this case, according to the evidence duly examined and adopted by the court below, it is reasonable to view that the "com 119", the victim corporation, was a business mark protected by the Unfair Competition Prevention Act by using the business mark "com 119" on April 9, 1997, which runs the computer repair business, etc. since February 2, 1998, by posting advertisements in daily newspapers, broadcast media, etc. or publicizing them on the Internet. Thus, it can be acknowledged that the "com 119" is a business mark protected by the Unfair Competition Prevention Act by being widely known around around 1998 (see Supreme Court Decision 2003Do8013, Feb. 13, 2004).

(3) Accordingly, the prosecutor's allegation on this part is also justified.

C. Thus, we examine whether the ‘com ○○' used by the Defendant is the same as or similar to the ‘com 119', which is the victim’s business mark.

(1) Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act provides that an act of unfair competition means an act of causing confusion with another person's business facilities or activities by using a mark identical or similar to the well-known business mark of the victim. In a case where the trade name or business mark composed of letters or numbers that have no or weak distinctiveness reaches the wide recognition in the Republic of Korea, the standard should be strictly interpreted and applied (see Supreme Court Decision 9Hu1645 delivered on September 17, 199, etc.). This legal doctrine also applies to determining whether part of the constituent parts is necessary in determining similarity of combined business marks. (2) The business mark "OOOOOOOO" and "OOOOO" as a whole has no or weak distinctive character as a business mark in the Republic of Korea, and thus, it shall be deemed that the business mark "OOOOOO" and "OOO" as a whole constitutes a non-distinctive mark.

3. Conclusion

Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles as to "unfair competition act" under the Unfair Competition Prevention Act, which affected the conclusion of the judgment. Thus, the prosecutor's appeal is dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

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