Seoul

Representative Director;

Attorney Kim Tae-ok, Counsel for the defendant-appellant

Gwangju

Representative Director;

Law Firm Yang Hun-Ga, Attorney Kim Hong-Un, Counsel for the defendant-appellant

2. All costs of the lawsuit shall be borne by the Plaintiff.

Defendant’s products, packings, containers and advertising advertisements of itself as shown in the attached Table 4 above;

No mark shall be indicated by a method.

Defendant’s marks listed in the attached list No. 5 are the packaging, labels, advertising advertisements and carculities of golf or golf holes.

No use shall be made in the street of the month.

(Plaintiff 1) The Plaintiff sought the prohibition of use of the mark indicated in the attached list No. 1, and the court

The purpose of appeal was modified and the purport of appeal was also modified.

A. The plaintiff is a company with the purpose of producing and selling golf products, and the defendant is a company with the purpose of producing and selling golf products.

B. Plaintiff filed and registered a trademark combining the following with the word “viddddd” with respect to a golf hole that it produces: (1) Date of application / Date of registration / Number / Date of registration / February 15, 2013. / No. 14. 14/ February 14, 2014 /****** * 3) trademark: VlovikVividid.

C. On March 2016, Plaintiff 2016: (a) sent a light-type golf machine (hereinafter “instant product”); and (b) ordered Plaintiff 2 to be “VIVID Scis.” The Plaintiff indicated Plaintiff’s trade name at the center of the instant product package gambling, as shown in attached Form 2, as indicated in attached Form 2, and indicated “VIVID’s intermediate size.”

D. With respect to a golf hole that he produces, the Defendant was registered after filing an application for registration of the trademark combining the word “vidd” with some of his trade names as follows. (1) Date of application / Date of registration / Date of registration : December 20, 2016 / Date of registration ****** 24 May 24, 2018: Trademark No. 28 (20 cases, such as golf 20 cases): x per unitvid

E. Around March 2018, Defendant 2018: (a) launched a golf luminous type; (b) the Defendant, as attached Form 3, indicated his trade name on the upper part of the above luminous-type golf-type golf-type, the upper part of the right side of the luminous-type, the name of which is small; and (c) indicated the VIVD at the center of gambling.

[Grounds for Recognition] Gap evidence Nos. 5, 6, 7, Eul evidence No. 33, the purport of the whole pleadings

2. The parties' arguments

A. Plaintiff 1’s assertion 1) The full-type trademark of the Plaintiff’s non-luminous golf type (“VIVD”) is merely a product mark that distinguishs the instant product from the Plaintiff’s trade name by using “Volvik Viv,” or “Vol6k.” In fact, the actual market distributes VIVD BAL, “non-public” as the name of “VIVD,” and “VIVD” (hereinafter “the instant mark”) using the same kind of trademark as the Plaintiff’s trade secret, regardless of its large character, letter, and size, is a product mark that distinguishs the instant product from the Plaintiff’s product of this case. When considering the sales volume, domestic market share, advertising cost, and advertisement and publicity of the instant product of this case, the Defendant is widely aware that the instant mark is identical to the Defendant’s product of this case’s trademark of this case’s non-public nature or its identity is identical to the Defendant’s product of this case’s trademark of this case’s non-public nature.

B. Defendant’s assertion

Defendant’s legitimate use of his registered trademark, which is not an unfair competition act.

The mark of this case claimed by the plaintiff as his own product mark is an easy English language at the level of a middle school or high school, and is commonly used by a majority in various industries, and is merely a role directly indicating the color, character, and characteristics of the golf hole with respect to the golf hole products produced by the plaintiff and the defendant.

Therefore, the mark of this case cannot be deemed to have obtained an independent distinctive character or well-knownness indicating that it was a product produced by the plaintiff.

3. Whether the mark of this case is widely known

A. Whether a mark indicating another person’s goods is widely known in Korea under Article 2 subparag. 1 (a) of the Act on the Prevention of Illegal Competition and the Protection of Trade Secrets is based on the period, method, pattern, quantity of use, scope of transaction, etc. of the mark, and whether it is objectively widely known under the generally accepted social norms. In a case where a mark indicating another person’s goods becomes widely known in Korea as a result of the combination of simple letters or numbers or the use of weak trademarks or a product mark that has no or weak distinctiveness as a result of the use of the mark, the standard should be strictly interpreted and applied (see Supreme Court Decision 2007Do10562, Sept. 11, 2008).

B. Specific determination

1) The Plaintiff’s assertion that the English language called “VIVD” itself is not “VIVD” of his own registered trademark, but the English language called “VIVD” of the instant mark, namely, large characters, fonts, and size of letters, is one’s own product mark. Therefore, this paper examines whether the English language of “VIVD” claimed by the Plaintiff, i.e., VIVD, obtained the well-knownness as the Plaintiff’s product mark.

2) In full view of the respective descriptions and the purport of the entire pleadings with respect to ○○○ Product No. 8,9,13, 14, 26,36 (including various numbers), from March 2016 to December 2016, the Plaintiff used the English language “VIVD” as shown in attached Table 2 in packaging boxes, etc. for about four years and two months, and produced the instant Product No. 1. Domestic sales volume of the instant Product *******, 2017 only 10,000 ** 60,000,000, the aggregate of domestic sales of the instant Product No. 2016, 14, 26, and 36,000,000 won * 10,000,000 won * 20,000,000,000 won * 16,000,000 won *.

Recognizing the fact that the response was given.

3) However, examining the following circumstances revealed in light of the above legal principles, it is difficult to see that the instant mark (VIVD) obtained independent well-knownness as the Plaintiff’s product mark, and there is no evidence to acknowledge otherwise.

① The instant mark is widely used as a typesetting company at a middle school or high school level with the meaning of “herst, life,” and is frequently used for the purpose of emphasizing the name of color in the fashion-related industry. Therefore, even in the case where the English language called “VIVD” is used in relation to knovag golf, consumers are more likely to understand that it is a 's well-known golf hole’ rather than recognizing it as the Plaintiff’s exclusive product mark. The Plaintiff himself is also explaining that the Plaintiff registered a trademark combining his trade name and the instant mark with a view to emphasizing the uniqueness of the instant product, which is a clear light color compared to that of the Plaintiff’s general golf, with the aim of emphasizing the characteristics of the instant product. Even if the press introducing the instant product or the Plaintiff’s promotional materials such as the Plaintiff’s entry signboards, etc., the phrase “non-distinctive and non-distinctive character of the instant product” should be interpreted as “non-distinctive or non-distinctive character of the instant product.”

② Not later than the closing date of the instant pleading, it is difficult to view the Plaintiff’s use of the instant mark as the period of approximately four years and two months. In particular, the period for which the Plaintiff independently used the instant mark prior to the Defendant’s use of its registered trademark, including the English language “VIVD”, is approximately two years.

③ The packaging of the instant product is more emphasizing than the instant mark. The Plaintiff’s trade name also emerged in the front side of the instant product, and the instant mark is indicated in a small letter on the side of the Plaintiff. The Plaintiff 4 submitted materials concerning the sales, number of sales, advertising, press, etc. of the instant product as evidence to support the acquisition of ‘IVID’, but 'VIVD' is often used as the Plaintiff’s representative mark in the instant product, packing, advertisement, press report, etc. (see next pictures), so it is difficult to conclude that 'VIVID’ is not widely known or non-knownly known 'VID' as its representative mark (IVV) if it is used together with the Plaintiff’s 'VVD 2' mark, which is one of the instant products, such as the instant product, packaging, advertising, media report, etc.

(c) in general;

Therefore, insofar as it is difficult to deem that the trademark of this case was well-known, the Plaintiff’s claim of this case premised on this cannot be seen as having obtained, without any need to examine further.

4. Conclusion

Therefore, the Plaintiff’s claim of this case must be dismissed as it is without merit. Since the Plaintiff changed the purport of the claim in this court, the judgment of the first instance, including the changed claim in this court, is to be changed as above. It is so decided as per Disposition.

Judges Park Jae-won

Judges Yoon Jae-ju

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.