Consumers are highly likely to understand the English language “VIVD” as indicating “VIVD in a clear color rather than the exclusive product mark of Company A,” and the period for which Company A independently uses the mark before the use of the trademark containing the English language “VIVD” by Company B is about two years, and the packaging box box of Company A is more emphasized than VIVD mark, and the “VIVDD” is used together with “Volvik” as the representative mark of Company A, and it is difficult to readily conclude that the aforementioned act does not constitute an “VIVD” as an unfair competition act in light of the fact that it is difficult to conclude that the consumers, as the representative mark of Company A, perceived the “VIVD” as the subsidiary brand of Company A or as the subsidiary brand of Company A or as the essential part of the “VIVD” mark, etc.

May 14, 2020

The plaintiff's claim is dismissed.

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

The judgment of the first instance shall be revoked.

No defendant shall display a mark on his/her products, containers, containers, and advertisements (attached Form 4) in the same manner as that in the list.

The defendant shall not use the marks listed in the list (attached Form 5) on the packaging, labels, advertising advertisements, and car-slopings of golf or golf holes.

(A) The plaintiff sought the prohibition of the use of the mark indicated in the list (attached Form 1), and the court modified the purport of the appeal by modifying the purport of the claim as above).

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. The Plaintiff applied for registration of a trademark combining his/her trade name and the word “vid” with respect to his/her golf hole produced by himself/herself, as follows:

1) Date of application/registration date/registration number: February 15, 2013 / February 14, 2014 (registration number 1 omitted)

(b) Designated goods: Class 28 (18 cases, such as golf balls);

3) Trademark:

C. On March 2016, the Plaintiff sent a golf luminous mix (hereinafter “instant product”) and ordered “VIVID marz.” The Plaintiff indicated the instant product’s trade name at the center, such as pictures (attached Form 2) and indicated “VIVID” in the middle size.

D. With respect to a golf hole that he produces, the Defendant applied for registration of the trademark combining the word “vid” with a part of his trade name as follows.

1) Date of application/registration date/registration number: December 20, 2016 / May 24, 2018 (registration number 2 omitted)

(b) Designated goods: Class 28 (20 cases, such as golf balls);

3) Trademark:

E. Around March 2018, the Defendant launched a golf luminous type. The Defendant, like [Attachment 3] photographs, indicated his/her trade name on the upper part of the above luminous-type golf rop-type, and indicated “VIVD” at the center of gambling.

[Reasons for Recognition] Evidence Nos. 5, 6, 7, Eul's Evidence No. 33, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The term “” or “Volvik” portion of the Plaintiff’s luminous-type golf machine is merely attached to the Plaintiff’s trade name. In fact, in the market, the above luminous-type golf machine is distributed under the name “VIVIBL” or “VIVD” (hereinafter “instant mark”) regardless of the size of large and small characters, letters, letters, and letters, are goods distinguishing the instant product from the Plaintiff’s trade name and independently. Considering the sales, sales, domestic market share, publicity cost, advertisement and publicity intensity of the instant product, the instant mark was widely known to the domestic consumers or traders with independent distinctive character.

2) The Defendant’s registered trademark “vid” requires separate observation and recognition, which is the same as the instant mark. In other words, the Defendant sold the same kind of product as the instant product using the same mark as the instant mark.

3) The Defendant’s act constitutes an act of unfair competition under Article 2(1)(a) of the Unfair Competition Prevention and Trade Secret Protection Act, which leads to confusion with the Plaintiff’s goods by selling goods using the same mark as the Plaintiff’s mark widely known in the Republic of Korea.

4) Therefore, the Defendant should not use the instant mark on the packaging, labels, advertising advertisements and car-slopings, such as the instant mark written in the purport of the claim.

B. Defendant’s assertion

The defendant properly uses his registered trademark, which is not an unfair competition act.

The instant mark claimed by the Plaintiff as one’s own product mark is an easy English language at the level of a middle school or high school with the purport that it is a well-known and well-known English language, and is often used by a majority in various industries. It is merely a role directly indicating the color, character, and characteristics of the golf machine in relation to the golf machine products produced by the Plaintiff and the Defendant.

Therefore, it cannot be deemed that the instant mark has an independent distinctive character or well-knownness indicating that it is a product produced by the Plaintiff.

3. Whether the mark of this case is widely known

A. Legal principles necessary for judgment

Whether a mark indicating another person's goods has been widely known in the Republic of Korea under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act is a standard for the period of use, method, pattern, quantity of use, scope of transaction, etc., and whether it is objectively widely known in terms of social norms and the actual circumstances of transaction of goods. In cases where a trademark or a product mark with no or weak distinctiveness is merely a combination of characters or numbers, and thus becomes widely known in the Republic of Korea as a result of the use of a trademark or product mark, the standard shall be strictly interpreted and applied (see Supreme Court Decision 2007Do10562, Sept. 11, 2008).

B. Specific determination

1) The Plaintiff asserts that the English language “VIVD,” regardless of the size of its registered trademark “,” not the instant mark “,” but the English language “VIVD” itself, is its own product mark. Therefore, this paper examines whether the instant mark claimed by the Plaintiff, namely, the English language “VIVD,” as the Plaintiff’s product mark.

2) Comprehensively taking account of the overall purport of each of the statements and arguments set forth in Gap 8, Gap 9, 13, 14, 26, and 36 (including various numbers), the plaintiff has produced the product of this case using the English language called "VIVD", such as the photographs, for about four years and two months (attached Form 2) from March 2016 to the closing date of the pleading. The domestic sales volume of the product of this case was about 40.9 billion won in 2016, about 304 million won in 2017, about 1.57 billion won in 2018, about 1.5 billion won in 2018, about 1.5 billion won in 2016, about 1.5 billion won in 2017, about 2017, and about 1.7 billion won in 1.7 billion won in 205 billion won in 2015.

3) However, examining the following circumstances in light of the aforementioned legal principles, it is difficult to view that the mark of this case (VIVD) as the Plaintiff’s product mark obtained a well-knownness, and there is no other evidence to acknowledge it otherwise.

① The instant mark is an easy English language as a type of a middle school or high school with the purport of “symbling, life,” and is commonly used for the purpose of emphasizing the name of color in the fashion-related industry. Therefore, even in cases where the English language called “VIVD” is used in relation to the golf machine, consumers are more likely to understand that it is a “sym-sym-sym-sym-sym-sym-sym-sym-sym-sym-sym-rym-sym-sym-rym-sym-sym-rym-sym-sym-sym-sym-rym-sym-rym-sym-sym-sym-sym-sym-rym-sym-sym-rym-sym-sym-ym-sym-ym-sym-ym-sym-ym-sty.

② Not later than the closing date of the instant pleading, it is difficult to see that the Plaintiff’s use of the instant mark was about 4 years and 2 months. In particular, prior to the Defendant’s use of its registered trademark containing the English language “VIVD,” the period during which the Plaintiff alone used the instant mark is merely about 2 years.

③ The packaging box of the instant product is more emphasized than the instant mark. The Plaintiff’s trade name has been considerably emphasized on the front side of the instant product, and the instant mark is written in a small letter on the side of the factory.

A person shall be appointed.

④ The Plaintiff submitted materials related to the sales, number of sales, advertising expenses, media reports, etc. of the instant product as evidence supporting that VIVD acquired well-knownness. However, in the instant product, packaging, advertisement, press report, etc., it seems that the “VIVD” is mostly used together with the “Volvik”, which had a considerable recognition as the Plaintiff’s representative mark (see side pictures). It is difficult to conclude that the consumers in charge of these products, packaging, advertising, press reports, etc. were aware of the “VIVD” as the “Volvik” and the “Volvik” as the “sub-bandandandandandandandandandandandandandandandandand are aware of the existence of the “VIVD” as the main mark of the Plaintiff company, and as long as such recognition is deemed difficult, it is more difficult to deem that VIVD acquired the well-knownness.

⑤ The Plaintiff’s survey (No. 36 No. 1, No. 36-2) that the Plaintiff requested a public opinion poll institute does not include a question as to whether “VIVD” is perceived as a trademark ( brand), whether “VIVD is recognized as a trademark, or whether it is recognized as a common and official name, or whether it is recognized as having shown the efficacy, use, etc. of a golf hole. However, given that the “VIVD” is used for a golf machine, it is not sufficient to obtain the Plaintiff’s fundamental limitation as a result of the survey that it is used as a distinguishing mark when it is used for a golf machine (see, e.g., paragraph (1), 5IVD is used for a golf machine, golf sort, and glick, etc. (including various numbers).

(c) in general;

Therefore, insofar as it is difficult to see that the mark of this case obtained well-knownness, the plaintiff's claim of this case premised on this premise is without merit.

4. Conclusion

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

[Attachment 1] Omitted

[Attachment 2] Products of this case: omitted

[Attachment 3] Defendant Products: Omitted

[Attachment 4] Display Method: Omitted

[Attachment 5] A mark seeking prohibition: omitted

Judges Kim-du (Presiding Judge)