The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

The victim's product marking failed to obtain a prompt well-knownness in the Daegu area, and the possibility of confusion or similarity with the Defendant's product marking is not recognized. Furthermore, this case is subject to the Trademark Act for lack of the purpose of unfair competition. Nevertheless, the judgment of the court below that found the Defendant guilty of the facts charged in this case is erroneous.

2. Summary of the facts charged

The Defendant is a person who operates the “○○○○○” located in the Geumpo-gu Si, Daegu-si, Seopo-gu, Daegu-si, and Nonindicted Party 1, from around 1990, operated the “△△△△ Joint Factory”, and manufactures and sells the “Sarog” widely recognized in the Republic of Korea, especially in Daegu and North Korea.

From July 14, 2008 to ○○○○○○, the Defendant: (a) from the perspective of July 14, 2008, the victim Nonindicted Party 1’s “Scarglas” and the color, design, and appearance of the container are very similar to those of the victim Nonindicted Party 1; and (b) the name of the goods marked are also identical to “Scarglas”; (c) from the perspective of the general public, the Defendant was engaged in an unfair competitive act that causes confusion with the goods of others by putting up a container with a mark that may mislead the victim to believe that it would be the same galle as that produced at the “△△△△ Joint Factory 1” as the victim’s stop at the “△△△△△△ Joint Factory” and selling it to Daegu and North Korea.

3. The judgment of the court below

The court below held that even if the trademark "unsten" has the character of the so-called trademark, when comprehensively examining the type and use period of the victim's product mark, sales amount of the victim's product, market share, advertisement, etc., which can be seen by the evidence submitted by the court below, the above product mark "unsten" combined with the trademark "unsten" and various letters, signs, etc. indicated on the above mark, and acquired widely recognized recognition in the Republic of Korea, especially Daegu and Northern region, and that the defendant and the victim's softent goods mark submitted as evidence directly were examined into the land, the court below held that the defendant's act of selling the above products is sufficiently similar to the defendant's unfair competition act by preventing confusion between the defendant's goods and the victim's goods in the light of the circumstances where the defendant's goods mark submitted as evidence and the victim's softent goods mark were used.

4. Judgment of the court below

A. Punishment under Article 18 (3) 1 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") means "the act of using any product identical or similar to another person's name, trade name, trademark, container or package widely known in the Republic of Korea, or any other product with a mark indicating another person's goods, or selling, distributing, importing, or exporting such product to cause confusion with another person's goods" under Article 2 subparagraph 1 (a) of the same Act. Generally, the packaging, containers, and designs of the product do not have the function of indicating the origin of the product. However, the door, color, or design indicated on any packing, including the trademark portion, is used as a means of giving a unique identity to the product, and it is used continuously, exclusively, exclusively, or exclusively for a long period of time, or continuously advertising advertisement, etc. to the extent that the discriminatory feature of the design is considerably individual and superior to the product of a specific source with a specific quality, and it is also decided that it constitutes "the other person's product labeling" under Article 2 subparagraph 1 (a) of the same Article 2.

In addition, the issue of whether a mark indicating another person’s goods (hereinafter “goods mark”) is widely known in the same provision is the standard for determining whether it is objectively known in terms of the actual circumstances of the transaction of goods and the social norms (see, e.g., Supreme Court Decisions 2001Da5295, Jun. 13, 2003; 2001Da76861, Sept. 26, 2003).

B. Although it is somewhat unclear in the facts charged of the instant case whether the victim’s product mark that the defendant engaged in an unfair competitive act means the trademark or the design means the trademark, it appears that the victim’s trademark refers to the characters, colors, and designs indicated in the instant container, including the victim’s registered trademark, and the package, container, and whole design of the product, such as the design, such as the design, other than the trademark, and the trademark and phrases, and the design used in the trademark and phrases, and the layout and color of such trademark and phrases, diagrams, pictures, etc., and the size and color of the trademark and the product mark of the defendant indicating all features such as the upper and lower structure and color of the belt.

However, we first examine whether the Defendant’s legal statement, the victim Nonindicted Party 1’s written statement, the victim’s confirmation of sales amount, each tax submission order, each trademark register of the Defendant and the victim, and each investigation report of △△△△△△△ joint factory (hereinafter “△△△△△△△△△”) were indicated in the instant container including the victim’s registered trademark “non-ro”, and the packaging and total design of the goods (hereinafter “the instant product mark”) were widely known in the Daegu and Northern region as the victim’s product mark. The lower court did not recognize the Defendant’s specific legal statement, the victim’s legal statement, the victim Nonindicted Party 1’s written statement, the victim’s confirmation of sales amount, the victim’s respective trademark register, the victim’s respective trademark register, and the victim’s respective investigation reports, etc. were indicated in the Defendant’s 202 to 208, and the Defendant’s exclusive market share at the time of their release in Daegu and 2007 to 1.20,000 won.

Nevertheless, the court below acknowledged that there is well-knownness without examining the evidence in determining whether the victim's above product mark has obtained well-knownness, and held that the defendant's act violates the Unfair Competition Prevention Act because the victim's above product mark and the product mark of the defendant's use are highly likely to cause confusion because they are very similar to that of the victim's above product mark and the product mark of the defendant's use are in violation of the Unfair Competition Prevention Act, which affected the conclusion of the judgment by misunderstanding the fact about the well-knownness of product mark

5. Conclusion

Therefore, even if the facts charged in this case constitute a case where there is no proof of crime and the defendant should be acquitted, the court below erred by misunderstanding the facts and affecting the conclusion of the judgment. Thus, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is decided as follows.

Judges Kim So-young (Presiding Judge)

1) The △△△ Joint Factory consists of 66 joint business operators, including the injured party, and the trademark registration of this case was made by the said joint business operators with the number of Nonindicted 2, Nonindicted 3, and Nonindicted 43 as the trademark right holder among the joint business operators.