[2] The case affirming the judgment below which held that the mark "EBS" indicated on the front and vertical sign of the teaching material of the ES broadcast "I" issued by the defendant is merely for guiding and explaining the contents or use of the teaching material used as the teaching material of the ES broadcast, and it cannot be deemed as a trademark indicating its source, and thus, it does not constitute a trademark infringement

[3] The case rejecting all of the grounds of appeal by the prosecutor that the court below did not request the defendant to revise the indictment in violation of the Unfair Competition Prevention and Trade Secret Protection Act, or did not ex officio decide whether the defendant violated the above Unfair Competition Prevention and Trade Secret Protection Act

[2] In a case where the Defendant was indicted on charges of infringing on another’s trademark rights by attaching the registered trademark “EBS” to the reading material “I without legitimate authority,” and distributing approximately one hundred and fifty copies to the participants of the Korean Educational Development Institute, the case affirming the judgment below which acquitted the Defendant of the above facts charged on the ground that the Defendant’s prior mark of the teaching material “EBS” as indicated on the designated product identical to the above registered product, but its source is clearly recognized as the Defendant’s or the Defendant’s private teaching institute’s private teaching institute’s private teaching institute’s name, address, Internet address, telephone number, etc. as indicated on the front mark of the teaching material of the said institute and the vertical sign, and that the Defendant’s use of the mark “EBS” cannot be seen as infringing on the content of the EBS’s trademark as it was produced and used by the Defendant or the Defendant’s private teaching institute’s private teaching institute’s private teaching institute’s use.

[3] The case rejecting all of the grounds of appeal by the prosecutor that the court below did not request the defendant to revise the indictment in violation of the Unfair Competition Prevention and Trade Secret Protection Act, or did not ex officio decide whether the defendant violated the above Unfair Competition Prevention and Trade Secret Protection Act

1. As to the assertion on the violation of the Trademark Act

A. The act of using another person's registered trademark on goods identical with or similar to the designated goods constitutes an infringement of another person's trademark right. However, even if it is used on another person's registered trademark, if it is not for the purpose of indicating source, but for the purpose of guiding and explaining the books' contents, etc., it cannot be deemed an infringement of trademark right (see Supreme Court Decision 2002Da63640, Oct. 10, 2003, etc.). In order to determine whether it is used as a trademark, in order to determine whether it is being used as a trademark, it shall be determined by taking into account the relation with the goods, the mode of using the relevant mark (i.e., the location, size, etc. indicated on the goods), the well-known and well-knownness of the registered trademark, the user's intent of use, and circumstances, etc. (see Supreme Court Decision 2002Do3445, Apr. 11, 2003, etc.).

B. According to the evidence duly admitted by the court below, the front sign of this case’s reading material “EBS” issued by the defendant (hereinafter “the book of this case”) includes the word “EBS” and “I” under the center, and the sign is also written “EBS I” with the word “I” with the sign of this case’s sign of this case’s language “I” and the registered trademark “EBS” (hereinafter “the mark of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of “○○○○○○○○○○○○○○○’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of this case’s sign of “the name and address of each Defendant’s △△△△△△△△ school” and the sign of this case’s sign.

In the same purport, the judgment of the court below which acquitted the defendant as to the violation of the Trademark Act is just and acceptable, and there is no error in the misapprehension of legal principles as to the use of trademark as otherwise alleged in the

2. As to the assertion that there is an error in failing to demand changes in the indictment

Whether the court shall demand the prosecutor to change the indictment or not belongs to the discretion, so it cannot be deemed unlawful on the ground that the court did not demand the prosecutor to change the indictment (see Supreme Court Decision 9Do3003 delivered on December 24, 199, etc.).

Therefore, we cannot accept the allegation in the grounds of appeal that the lower court’s failure to request the alteration of indictment for violating the Trademark Act by violating the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

3. As to the assertion that the violation of the Unfair Competition Prevention Act should have been decided ex officio

In order for a court to recognize facts constituting a crime different from those stated in the indictment ex officio without changing the indictment, it shall be limited to the extent identical to the facts charged and shall not cause substantial disadvantages to the defendant's exercise of his/her right to defense (see Supreme Court Decision 2010Do2414, Apr. 29, 2010, etc.).

However, the facts charged in violation of the Trademark Act and the facts charged in violation of the Unfair Competition Prevention Act regarding the prosecutor's assertion should be different from the contents and form of the crime, and the defendant's defense act to cope with them should be different. Thus, if the facts charged as alleged in the prosecutor's indictment are acknowledged without changing the indictment, the defendant's defense right may be actually disadvantaged. Thus, without examining whether there is evidence to acknowledge such facts charged, this part of the grounds of appeal is rejected.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)