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

A. The Plaintiff is a person who runs a ice restaurant franchise business using the business mark “D(E)” (hereinafter “D”) of the instant business mark.

B. On April 4, 2014, the Plaintiff entered into a franchise agreement (hereinafter “instant franchise agreement”) with Defendant B and Seo-gu, Daejeon, with the content that “D Daejeon store (hereinafter “instant store”).

C. After entering into the instant franchise agreement, Defendant B operated an ice restaurant in the name of “D(E)” at the instant store, along with Defendant C.

The Defendants, on March 28, 2015, terminated the agreement with the Plaintiff on the instant franchise agreement.

E. Even after the conclusion of the instant agreement, the Defendants continued to operate the ice restaurant at the instant store, using the business mark called “E” on the goods used within the instant store, such as a food bag, and used “D” or “E” as one’s own business mark on the signboard, Internet, etc.

[Ground for Recognition: Facts without dispute, each entry or video of Gap evidence 1 through 18, and purport of whole pleadings]

2. The parties' assertion

A. The Defendants asserted that the Plaintiff violated the duty of prohibition of competition after the termination of the instant franchise agreement, and thus are obliged to pay the money claimed as a penalty for breach of contract under the instant franchise agreement.

B. 1) The Defendants’ assertion that the use of the instant trademark constitutes an infringement on another person’s service mark, and thus, the instant franchise agreement concluded by deception or mistake as to the legitimacy of the use of the instant trademark exists in its important part, and on this ground, the instant franchise agreement is revoked. 2) The Defendants did not violate the instant franchise agreement, since the trademark used by the Defendants is different from the instant trademark.

2. Determination

A. First, the Defendants’ instant franchise agreement.