[2] The case holding that it is difficult to view the term "Seoul Law Firm" as the name "Seoul General Law Firm" that is likely to mislead or confuse general consumers with the business of "Seoul General Law Firm" or that it is not possible to distinguish it from Seoul General Law Firm"

[2] In a case where the Seoul General Law Firm filed a claim for the abolition, etc. of the name of the Seoul General Law Firm against the Seoul General Law Firm, the case holding that it is difficult to view that the Seoul General Law Firm may mislead and confuse general consumers with the business of the Seoul General Law Firm, or that it is not possible to distinguish it from the Seoul General Law Firm

2. The costs of appeal shall be borne by the Plaintiff.

A. The plaintiff is a law firm whose name is "Seoul General Law Firm" and whose name is "Seoul General Law Firm" and whose name has been registered on March 10, 1999 as the receipt number 200 on March 5, 1991, the main office is 633-15, 53-15, 63-2, 15, 200, 200, 200, 39-2, 39-2, 200, 200, 1572-1, 1572-1, 200, 200, 300, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200,

B. The Defendant registered the Seoul Central District Court and the receipt number No. 1365 on December 27, 2006, the principal office of Seocho-gu Seoul Seocho-gu is 1105, Seocho-gu, Seoul, Seocho-gu, Seoul, the purpose of its establishment of which belongs to the attorney’s duties, the duties of notary public belonging to the duties of notary public, the duties of Article 39(2) of the Attorney-at-Law Act, and the law firm whose name has been registered as “Seoul Law Firm”.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 and 2

2. The parties' assertion

A. The plaintiff's assertion

As the cause of the instant claim, the term “the name of the law firm to be registered at the time of the registration of incorporation of the law firm” is applied mutatis mutandis to the provisions on the trade name of the Commercial Act. Since the name used by the Defendant is the same as the name and the essential part of the Plaintiff and may cause ordinary consumers to misunderstand the Plaintiff’s business, the act of using the Defendant’s name “Seoul” and the registration is in violation of Article 23(1) of the Commercial Act and Article 164 of the former Non-Contentious Case Litigation Procedure Act (amended by Act No. 8569 of Jul. 27, 2007). The Plaintiff asserts that the use prohibition and abolition of the above name

B. Defendant’s assertion

In this regard, the defendant asserts that the "title" of the law firm is different from the trade name of the merchant, and it cannot be applied to the provisions of the Commercial Act, etc. concerning the protection of the trade name, and even if the name of the defendant and the plaintiff are applied to domestic affairs, there is no possibility of mistake and confusion as it is not similar to the name of the plaintiff.

3. Determination

A. Legal nature of “the name of the law firm” and relationship with “mutual name” under the Commercial Act

(1) Relevant statutes

Article 42 (Matters to be Stated in Articles of Incorporation) (1) of the former Non-Contentious Case Litigation Procedure Act (amended by Act No. 8569, Jul. 27, 2007) (1) Article 43 (Registration of Establishment of Law Firm) (1) of the Act on the Registration of Non-Contentious Case Litigation (amended by Act No. 8569, Jul. 27, 2007) provides for the following matters: (2) Matters to be registered under paragraph (1) of the same Article shall be as follows: (1) Matters concerning unlimited partnerships in the Commercial Act shall apply mutatis mutandis to law firms, except as otherwise provided for in this Act. (3) Matters concerning the registration of Non-Contentious Case Litigation Procedure Act (amended by Act No. 8569, Jul. 27, 2007). Article 136 (Commercial Types of Commercial Registers) of the Act on the Registration of Non-Contentious Case Law Firm are prohibited from being registered separately with the following registry offices:

(2) Determination:

The trade name is the name used by merchants to indicate their own business, and the Attorney-at-Law Act uses the term "title" rather than "trade name" for the law firm, so it is examined whether the provisions of the Commercial Act, etc. concerning the trade name apply to the law firm's name in light of the above provisions of the relevant statutes

An attorney-at-law does not correspond to "a person who conducts business in a merchant manner" under Article 5 (1) of the Commercial Act (see Supreme Court Order 2006Ma334, Jul. 26, 2007). Since the Attorney-at-law Act provides that a law firm is not in the form of "commercial act or for other profit-making purposes" but in the form of "an association established by an attorney-at-law to perform its duties in a systematic and professional manner" (Article 40). Thus, a law firm does not belong to a merchant (Article 40).

Pursuant to Article 42 subparagraph 1 of the Attorney-at-Law Act, a law firm shall enter "title" other than "trade name" in its articles of incorporation, and shall register "title" other than "trade name" at the time of registration of incorporation under Article 43 (2) subparagraph 1 of the same Act. Thus, this law firm's registration of incorporation cannot be the same as the registration of incorporation of a company or the registration of trade name of an individual merchant under the Commercial Act whose registration of incorporation is registered "trade name" (see the above Order 2006Ma

However, unlike an individual attorney who is unable to register the trade name or name at the beginning, a law firm can register its name in accordance with the provisions on commercial registration of the former Non-Contentious Case Litigation Procedure Act (the current Commercial Registration Act; hereinafter the same shall apply) (not being separately registered in the trade name register, but only registered in the special law firm register according to the "Registration Rules of Civil Corporation and Special Law Corporation" as part of the registration of incorporation). The "law firm name" as a part of the registration of incorporation carries out the same function as the trade name of the merchant as that of the provisions on commercial registration of the former Non-Contentious Case Litigation Procedure Act which are applied mutatis mutandis to the registration of law firm, and there is no reason to exclude the application of Article 164 among the provisions on the commercial registration of the former Non-Contentious Case Litigation Procedure Act which are applied mutatis mutandis to the registration of law firm's establishment. Therefore, it is unfair that the above provisions are applied mutatis mutandis to the "title" of the law firm because there is no ground to dismiss it when applying for the registration of its incorporation.

B. Determination on the Plaintiff’s claim

(1) Requirements for the prohibition, destruction, and cancellation of a trade name

Article 23(1) of the Commercial Act provides, “No person shall use any trade name that may be mistaken for the business of another person for an unlawful purpose,” and Article 23(2) of the same Act provides, “Where any person uses any trade name in violation of the provisions of paragraph (1), and any person who is likely to suffer damage or who has registered his trade name may file a claim for abolition of the trade name.” For an unlawful purpose, a law firm shall not use any name that may be mistaken for the business of another law firm. Article 22 of the Commercial Act prohibits registration of trade name that cannot be clearly distinguishable from the trade name registered by another person, and Article 22 of the Commercial Act also recognizes the validity of a claim for cancellation of such registration against the latter registrant (see Supreme Court Decision 2001Da72081, Mar. 26, 2004). Thus, the same provision shall also apply to a claim for cancellation of another law firm’s name, which shall not be clearly distinguishable from the name registered by another law firm.

Therefore, the “trade name that may be mistaken for another person’s business” refers to a trade name that is identical or accurately distinguishable from another person’s trade name. The determination should be based on whether there is a possibility of mistake or confusion between the pre-registration trade name and the post-registration (or the applicant for registration). As such, in order for the Plaintiff to seek the prohibition and abolition of the Defendant’s name and the cancellation of such registration pursuant to Article 23 of the Commercial Act, or to seek cancellation of the above registration pursuant to Article 22 of the Commercial Act or Article 164 of the former Non-Contentious Case Litigation Procedure Act, first of all, it should be recognized that there is a possibility of mistake or confusion with the Defendant’s name, and further, the Defendant

(2) Possibility of mistake and confusion

In the application of Article 23 of the Commercial Act, in determining whether a trade name is likely to mislead or confuse general consumers as to the subject of business, the whole trade names shall be compared and observed, and it shall be comprehensively taken into account whether the trade names are closely related to each other in terms of the nature, contents, business methods, customer floor, etc. of the business, and whether general consumers consider that the subject of both business is related to each other, or whether the trade names of others are widely known so that absolute trust from general consumers is acquired due to the reputation of the company (see Supreme Court Decision 2001Da73879, Feb. 26, 2002).

On the other hand, in the plaintiff's name, "comprehensive" is merely the meaning of dealing with legal affairs comprehensively, and it is not possible to recognize distinguishability in itself because it is widely added to the name of a law firm or an attorney's office. "Seoul" also constitutes a conspicuous geographical name as an waterworks of the Republic of Korea, as well as a conspicuous geographical name, and as recognized by the evidence Nos. 1 and 2-1 through 4, it is difficult to see "Seoul" as a law firm using the word "Seoul" as well as the plaintiff and the defendant as a law firm using the word "Seoul", "Seoul International Law Firm," "Seoul Law Firm Barun Law Firm," "Seoul Law Firm Barun Law Firm," and "Seoul," and the entire name of the plaintiff and the defendant are different from the plaintiff's name "Seoul," so it is difficult to see that the name of the defendant's general consumers can not be mistaken or confused with the plaintiff's name "Seoul," and the overall name of the defendant's "Seoul" can not be distinguished from the plaintiff's name "Seoul."

(3) Whether unlawful purposes exist

"Unlawful purpose" in Article 23 (1) and (4) of the Commercial Act refers to the intention that a general person misleads the general public as to his/her own business with his/her name indicated (see, e.g., Supreme Court Decisions 94Da31365, 31372, Sept. 29, 1995; 2003Da12601, Sept. 26, 2003; 2001Da72081, Mar. 26, 2004).

However, in the attorney industry, it is common for consumers to choose a law firm or an attorney-at-law office through the recommendation or introduction of a person who acts in the process of the case, and the expertise or friendship of affiliated attorneys rather than the trust or reputation of the law firm. The plaintiff operated the law firm in Seoul Special Metropolitan City for not less than 17 years, but it is difficult to see that the plaintiff's name was well-known and well-known in the attorney industry. The plaintiff's principal office in the Seoul Northern Northern District Court continues to have only small-scale branch offices after its establishment, while the defendant's office is located in the Seocho-dong District Court, it is difficult to recognize that the defendant used his name for the above "illegal purpose".

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so decided as per Disposition by the court below.

Judges Park Dong-dong (Presiding Judge)