[2] In a case where the amount of damages is calculated pursuant to Article 14-2 (1) of the former Unfair Competition Prevention and Trade Secret Protection Act, whether the infringer is allowed to assert that the amount of damages should be reduced to the amount of damages calculated pursuant to Article 14-2 (2) or (3) of the same Act (negative)

[2] Article 14-2(1) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) provides that a person whose business interests were infringed (hereinafter “infringed person”) may claim damages by proving the quantity of the goods transferred in lieu of the quantity of the goods that were sold in the absence of unfair competition act or infringement of trade secrets, by the quantity of the goods transferred in the absence of the unfair competition act or infringement of trade secrets (hereinafter “infringed person”) shall be presumed by the transfer quantity of the goods that were transferred in the absence of the unfair competition act or infringement of trade secrets. The scope of the amount calculated by multiplying the amount calculated by the profit per unit by the quantity obtained by subtracting the quantity of the goods actually sold in the absence of the unfair competition act or infringement of trade secrets by the quantity of the goods that were sold in lieu of the quantity of the goods that were sold in the absence of the unfair competition act or infringement of trade secrets, the infringer shall not be allowed to claim damages pursuant to the proviso to paragraph (2) of the same Article 2).

1. Whether the act constitutes an unfair competition act under Article 2(1)(a) of the former Unfair Competition Prevention Act (amended by Act No. 8767 of Dec. 21, 2007; hereinafter “Unfair Competition Prevention Act”).

A. Regarding the recognition of the plaintiffs' product mark

Article 2 subparagraph 1 (a) and (b) of the Unfair Competition Prevention Act does not require that the mark indicating another person's goods or business is widely known to all the people in the Republic of Korea, but it is sufficient to the extent known among the traders or consumers within a certain domestic area. Whether the trademark is widely known or not should be determined based on the period of use, method, pattern, quantity of use, scope of transaction, etc., the actual condition of the transaction of the goods, and whether it is objectively widely known under the social norms and the social norms (see Supreme Court Decision 2001Da76861, Sept. 26, 2003).

In light of the above legal principles and records, the judgment of the court below which held that the plaintiffs' goods marks using "RUMY" (hereinafter "RUMIKB goods") were widely known domestically around February 2005, when considering various circumstances such as the development timing of the plaintiffs' goods mark "RUMIKUB goods" (hereinafter "RUB goods"), the number of domestic sales places and annual sales volume, the number and size of domestic competitions using MUB goods, and the fact that the entity recognizing the well-knownness of the RUM's goods appears to have many interests in the MUM games in light of the type and characteristics of the goods, is justifiable, and there is no error in the misapprehension of legal principles as to the well-knownness of the goods mark under the Unfair Competition Prevention Act, or in the misapprehension of facts contrary to the rules of evidence.

B. As to the similarity between the plaintiffs and the defendant's product marks

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the defendant's product label "RUY" and the plaintiffs' product label "RUKB" are similar, and there is no error in the misapprehension of legal principles as to the determination of similarity of product labels under the Unfair Competition Prevention Act.

C. Regarding the risk of confusion with the products with which the plaintiffs' goods marks were used

The meaning of Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act "in that it causes confusion with another's goods" includes not only the case where the source of the goods is identical, but also the case where consumers mislead consumers as to whether it is closely related to capital, organization, etc. between the subject of the product mark and users by using a mark identical or similar to another's product mark widely known in the Republic of Korea. Whether it constitutes an act of causing confusion with another's goods should be determined by considering the degree of recognition and distinctiveness of the product mark, degree of similarity, degree of similarity, mode of use, similarity of the mark, existence of competitive and competitive relations due to the product's similarity and overlapping of customer class, etc. (see Supreme Court Decision 2005Da60208 delivered on December 27, 2007).

In light of the above legal principles and records, in light of various circumstances such as that the plaintiffs' product mark obtained well-knownness in Korea, the similarity of the plaintiffs and the defendant's product mark with similar goods, the smoking of the products using both products, and the overlapping of customer level of both products, the act of selling the defendant's product mark constitutes an unfair competition act that causes confusion with the products using the plaintiffs' product mark. Thus, the court below's decision to the same purport did not err in the misapprehension of legal principles as to the determination of risk of confusion under the Unfair Competition Prevention Act.

D. As to whether the Defendant’s mark of goods constitutes an ordinary name or technical trademark under Article 51(1)2 of the Trademark Act, and an official trademark under Article 51(1)3 of the Trademark Act and does not constitute an unfair competition act

In light of the evidence duly admitted by the court below and the records, the court below is just in rejecting the defendant's assertion on the ground that the defendant's trademark constitutes a common name or technical trademark under Article 51 (1) 2 of the Trademark Act or an official trademark under Article 51 (1) 3 of the Trademark Act, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. Method of calculating damages under Article 14-2 (1) of the Unfair Competition Prevention Act;

Article 14-2(1) of the Unfair Competition Prevention Act provides that “Where a person whose business interests were infringed by an act of unfair competition or infringement of trade secrets claims compensation under Article 5 or 11, the amount of damages suffered by the infringer may be calculated by multiplying the quantity of the article transferred by the profit per unit of the article that could have been sold in the absence of the said act of unfair competition or infringement of trade secrets. In such cases, the amount of damages shall not exceed the amount calculated by multiplying the quantity of the article that the person whose business interests were infringed could have produced subtracting the quantity of the article actually sold from the quantity of the article that the person could have produced, by the number obtained by subtracting the quantity of the article actually sold from the quantity of the article that the person would have infringed by the said act of unfair competition or infringement of trade secrets, the amount calculated by subtracting the quantity of the article that the person would have infringed by the said act of unfair competition or infringement of trade secrets from the quantity of the article that the person would have infringed by the said act of unfair competition without the said act of unfair competition or infringement of trade secrets shall not be deducted from the quantity of the article.”

In light of the above legal principles and records, the court below acknowledged the facts as stated in its ruling after compiling the evidence it adopted, and determined the amount of damages arising from an unfair competitive act under Article 14-2 (1) of the Unfair Competition Prevention Act is just, and there is no violation of law by misapprehending the legal principles as to the calculation of damages under the Unfair

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)