Defendant 1 shall be punished by imprisonment for six months, by imprisonment for two years, and by imprisonment for three months, respectively.

Seized evidence 8 through 14 shall be confiscated by Defendant 1.

A. misunderstanding of facts and misapprehension of legal principles

The lower court erred by misapprehending the legal principles or by misapprehending the legal principles, which found the Defendants guilty of each of the facts charged, although the Defendants did not violate the relevant statutes.

1) As to the violation of the Copyright Act

① The shape of the instant character (hereinafter “the instant character”) cannot be protected by copyright in Japan, its home country. As such, the shape of the instant character (hereinafter “the instant character”) cannot be protected by copyright in Korea is not subject to copyright protection. ② The shape of the instant character (hereinafter “the instant shape”) cannot be viewed as a copyrighted work because it is distinct from the used one, and its identity cannot be recognized. ③ The shape of the instant shape is not creative; ④ the shape of the earth that the Defendants imported and sold was not copied, and ④ Defendant 1 and Defendant 3 did not have the intent to commit a crime against infringement.

2) Regarding violation of the Unfair Competition Prevention and Trade Secret Protection Act

① The shape of this case does not constitute a mark indicating another person’s goods, and ② the shape of this case is not widely known in Korea. ③ The shape of this case and the shape of the mold imported and sold by the Defendants are not identical or similar, and ④ Defendant 1 and Defendant 3 did not intend to commit an act of unfair competition.

3) As to the violation of the Trademark Act

① Even if the Defendants imported and sold the shapes identical to the figure portion of the trademark registered by Nonindicted Party 1 (hereinafter “instant registered trademark”), they correspond to the use of the trademark as a design, and not the use as a trademark. ② Defendant 2 imported and sold the shape “suredorge” after October 4, 2012, and thus, Defendant 2 did not infringe the trademark right of the instant registered trademark. ③ The trademark used by the instant registered trademark is not similar, and ④ Defendant 1 and Defendant 3 do not have any criminal intent as to infringement of the Trademark Act.

B. Unreasonable sentencing

The punishment sentenced by the court below (defendant 1: 10 months of imprisonment, 2 years of imprisonment and 1 year of imprisonment) is too unreasonable.

2. Determination

A. Ex officio determination

In the first instance trial, among the parts of the facts charged in this case against the Defendants, the Prosecutor filed an application for changes in the indictment with the same or similar trademark “B” in attached Form 2, which is identical or similar to the trademark “B” (trademark registration number 2 omitted) and the trademark “(trademark registration number 2 omitted)” in attached Form 2, which is identical or similar to the trademark “B” (trademark registration number 2 omitted) and the subject of the trial. As such, the judgment of the court below is no longer maintained.

However, the defendants' assertion of mistake of facts and misapprehension of legal principles as to the changed facts charged is still subject to the judgment of this court despite the above reasons for ex officio reversal, and this is examined below.

B. Judgment on mistake of facts and misapprehension of legal principles

1) As to the violation of the Copyright Act

A) Applicable law

The Republic of Korea is a member of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the “Berne Convention”), both Japan and the country seeking the protection of copyright of the character in this case, which is the first developing country of the character in this case. If the character in this case is a kind of applied art under Article 2(1) of the Berne Convention, the scope of application of the Act on the Works of Applied Works and the conditions under which such works are protected are decided to be entrusted to legislation of the Union, and thus, the scope of application of the Act on the Protection of Applied Works and the conditions under which the rights of the State are protected are not protected under the Berne Convention by stipulating that the character in this case constitutes literary and artistic works subject to the Berne Convention, and that the protection of the rights of the State in this case should not be granted separately from the provisions of the Berne Convention on the Protection of Copyright in any other country.

Article 24 of the Berne Convention provides that "the protection of intellectual property shall be governed by the law of the place of infringement," and Article 24 of the Act on Private International Law stipulates that "the protection of intellectual property shall be governed by the law of the country of infringement," in this context, where the law of the country of origin is applied to the scope of the protection of intellectual property, and where the law of the country of nationality is applied to the determination of the copyright owner, it is not easy to determine the law of the country of origin first, and it is not easy to determine and apply the copyright infringement or the conclusion of the decision of the copyright owner is different depending on where the copyright owner's nationality is located in the same territory. On the other hand, the issue of the decision of the copyright owner is closely related to the existence and contents of the copyright, so it is necessary for each protection country to apply the law uniformly. In light of the above, it is easy for each conference country to apply the law of the country of origin to the extent that the law of the country of origin is not expressly provided for in the international law, and it is reasonable to interpret the principle of the law of intellectual property protection of Korea.

Therefore, without examining whether the character of this case is subject to protection under the Japanese copyright-related laws, we would like to examine whether the character of this case is subject to protection under the Korean Copyright Act by changing the following paragraphs.

B) Whether it is protected under the Korean Copyright Act or not and whether it is infringed

In order for a work to be protected under the Copyright Act, it shall be a creative production belonging to the scope of literary, scientific or artistic works. As such, creativity is required as a requirement. It does not mean a complete originality, but merely means that a certain work does not simply imitate another work, but includes an original expression of author's own ideas or emotions. In order to meet such requirements, it is sufficient to the extent that the work is given the characteristics of the work as a lawsuit of mental effort as the author's own name and that it can be distinguished from the existing works of other authors (see Supreme Court Decision 2002Do446, Oct. 23, 2003, etc.).

In light of the following circumstances acknowledged by the original judgment and the evidence duly adopted and examined the character of this case: ① the character of this case is expressed in the shape of a person; ② the character of this case is hard to view that the character of this case is identical to the character of this case’s creation; ② the character of this case’s creation in the shape of a character of this case’s character is hard to see that it is identical to the character of this case’s creation; ④ the character of this case’s character is similar to the character of this case’s character that is widely known in the shape of the Chinese Copyright Act; ④ the character of this case’s creation is similar to the character of the character of this case’s creation; ② the character of this case’s character is hard to see that it is identical to the character of this case’s creation; ② the character of this case’s character is identical to the character of this case’s character that is widely known to the character of this case’s creation; and ③ the character of this case’s character appears to be inconsistent with the character of this case’s character.

On the other hand, the defendants' shape, eye, coin, arms, legs, etc. are rarely distinguishable from the shape of face compared to the shape of stick in this case. ② Not only the shape of stick in this case, but also the shape of stick that the defendants imported and sold, such as the face shape, eye, cap, cap, arms, bridge, etc. are fundamentally distinguishable from the shape of stick in nature, so it is difficult to view that the defendants' expression has no choice but to be similar in nature due to the characteristics of the part in nature in the process of painting the part in nature. ③ The consumers who purchased the part in this case that the defendants imported and sold, purchased the part in this case with the part in Japan, and asked about whether the part in this case, which were imported and sold by the defendants, were not separated from the shape of the part in this case, and the defendants' assertion that the character in this case was practically identical to the imported part in this case is without merit.

2) Regarding violation of the Unfair Competition Prevention and Trade Secret Protection Act

The meaning of "a widely known mark indicating another person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") does not require that the mark "in the Republic of Korea is widely known to all people," but is sufficient to the extent known among traders or consumers within a certain domestic area. Whether a trademark is widely known is the period of use, method, pattern, quantity of use, scope of transaction, etc., and whether it is objectively widely known under the social norms and objectively known under the social norms or circumstances (see, e.g., Supreme Court Decision 2010Do6187, May 9, 2012). Meanwhile, in order to become a "mark indicating another person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act"), the character itself is not sufficient to be widely known in the Republic of Korea, and the character of the goods is widely known to the holder of the right to use the goods and its right to use the goods, 20.

In light of the following circumstances acknowledged by the lower court and the first instance court’s judgment, the Defendants’ character was created by Nonindicted 3, which was the type of Japan’s 204 trademark, and the instant character was imported by Nonindicted Company 2 (hereinafter “Nonindicted Company 4”), and Nonindicted Company 4 (hereinafter “Nonindicted Company 4”) was granted exclusive rights to the instant character, such as sales of the instant character, and Nonindicted Company 1 was widely known and indicated by the first instance court’s online sales contract with Nonindicted Company 4 on February 1, 205, and that the instant character was imported by Nonindicted Company 2, which was the first instance court’s sales of the instant character, and that the instant character was widely known and indicated by Nonindicted Company 4’s sales of the instant character, and that the instant character was imported by Nonindicted Company 4’s online sales contract with Nonindicted Company 2, which was the first instance court’s online sales of the instant character.

3) As to the violation of the Trademark Act

If a trademark identical or similar to another person's registered trademark is used on goods identical or similar to the designated goods, such act constitutes an infringement on the right to registered trademark. The issue of whether it is being used as a trademark shall be determined by comprehensively taking into account the relation with the goods, how the trademark is used (the location, size, etc. indicated on the goods, etc.), the user's intent, and how the trademark is used as an identification mark (see Supreme Court Decision 201Do7352, Jan. 27, 2011, etc.).

Meanwhile, in principle, whether a trademark combining letters, letters, or diagrams, etc. shall be determined by the appearance, name, and concept, etc. arising from the entire constituent elements of the trademark. However, in cases where it is deemed that a trademark can be traded only by an independent constituent element, i.e., a component capable of distinguishing one’s own goods, the similarity of a trademark may be determined on the basis of a name or concept arising from the said part after separation and extraction of the essential elements (see Supreme Court Decisions 2010Hu1763, Jan. 27, 201; 2005Hu2977, May 15, 2008, etc.).

In light of the following circumstances acknowledged by the lower court and the first instance court’s duly adopted and investigated evidence as to whether each mark was used as a trademark, i.e., the trademark attached Table 2 is connected to the labels attached to the mode, and ii) the trademark was confirmed and purchased based on the trademark that the Defendants imported and sold at a higher level than the mode, (iii) Defendant 1 gave the consumers who want to use the mode, namely, the trademark attached to the 2nd body and the 1st body’s trademark attached to the 1st body, and that the 2nd body’s trademark attached to the 2nd body and the 1st body’s attached list attached to the 2nd body’s attached Table 3nd body’s attached to the 1st body and the 2nd body’s attached list attached to the 1st body.

Then, in light of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined as to the similarity between the registered trademark of this case and the trademark of this case, ① the registered trademark of this case is not a combination of letters and diagrams indivisible, so lecure is a combination of “sucre” and “sucre” in French language. ② In light of the trends of ordinary consumers who want to use the trademark simply as “sucre” with the word “sucre” is not a combination of the word “sucre” and the word “sucre”, and the meaning of the trademark can be seen as a combination of the word “sucre” and the word “sucre” among the marks used by the Defendants as well as the word “sucre” combined with the word “sucre” as a combination of the word “sucre”. < Amended by Presidential Decree No. 20720, Apr. 2, 2002>

Therefore, although the trademarks used by the defendants are not similar to the registered trademark of this case, the registered trademark of this case and the trademark attached to the trademark of this case 2 are identical or similar in terms of name and concept, as seen above, in light of the above legal principles, the trademark of this case and the trademark attached to the trademark of this case 2 are similar trademarks, and since the defendants used the trademark attached to the trademark of this case 2 in the form that is goods identical to the designated goods of the trademark of this case, it is reasonable to deem that the trademark use of the attached trademark of this case by the defendants is confused with the source that can be seen as the essential function of the trademark by ordinary consumers

4) The relationship between Defendant 1 and Defendant 3

The following circumstances acknowledged by the lower court and the first instance court’s duly adopted and investigated evidence, i.e., 1/3 to 1/2 of the instant well-known shape: (a) Defendant 1 and Defendant 3 could have been sufficiently suspected of being manufactured or imported in a way that does not normally have been manufactured or imported; (b) Defendant 1 had a proper degree of KRW 80,00 won from Nonindicted Party 1’s office to purchase and sell the instant well-known shape; and (c) Defendant 1 did not have been supplied with the instant well-known shape by Nonindicted Party 1’s agent for sale; and (d) Defendant 1 did not appear to have been aware of the fact that he did not have been provided with the instant well-known shape from Nonindicted Party 1’s agent’s copyright infringement; and (e) Defendant 1 did not appear to have been aware of the fact that he had been provided with the instant mold shape by the Defendant’s agent for sale of the instant well-known shape.

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio under Article 364(2) of the Criminal Procedure Act without examining the defendants' assertion of unfair sentencing, and it is again decided as follows.

Article 93 of each Trademark Act (hereafter referred to as "trademark infringement"), Article 136 (1) 1 of each Copyright Act (hereafter referred to as "copyright infringement"), Article 18 (3) 1 of each former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 2013); Article 18 (3) 1 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 201); and each choice of imprisonment

2. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Aggravation of Punishment for Offense against Violation of the Trademark Act with the largest Punishment)

3. Confiscation;

Defendant 1: Article 97-2(1) of the Trademark Act; Article 139 of the Copyright Act; Article 48(1)1 of the Criminal Act

[Attachment]

Judges higher than judges (Presiding Judge) and Obscoping yeast