[2] Whether it is necessary to assert and prove the requirements for the claim for damages due to a tort under Article 750 of the Civil Code in order to claim for damages due to an act of reciprocal use under Article 23 (1) through (3) of the Commercial Code (affirmative)

[3] In the event of an infringement under Article 14-2 (1) of the former Unfair Competition Prevention and Trade Secret Protection Act, whether the occurrence of the loss is presumed (negative), and the degree of assertion and proof as to the occurrence of the loss

[4] Whether a claim for damages under Article 750 of the Civil Code, or a claim for damages equivalent to the royalty which would normally receive in return for granting permission for the mutual use of a business mark and a trademark mark, in a case where a business owner's confusion act and infringement is caused by a business owner's confusion under the Unfair Competition Prevention and Trade Secret Protection Act (affirmative)

[2] Article 23(1) through (3) of the Commercial Act provides that in a case where there is a person using a trade name that may be mistaken for another person's business for unjust purposes, either a person likely to suffer loss or a person who has registered his trade name may claim damages in addition to the claim for closure of his trade name. Thus, a person who intends to claim damages on the ground of a trade name use for an unlawful purpose under the Commercial Act is a requirement for the claim for damages due to a tort under Article 750 of the Civil Act, and is obliged to assert the infringer's intentional or negligent act, infringing act, and the burden of proof.

[3] The provisions of Article 14-2 (1) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 6421 of Feb. 3, 2001) (the same shall apply to Article 14-2 (2) of the same Act) shall only be presumed to be the amount of damage suffered by the right holder in case where the right holder claims compensation for business damage caused by an act of unfair competition or infringement of trade secrets and it is difficult to prove the amount of such damage in light of the difficulty in proving the amount of damage. In case where the right holder gains profit from the act of unfair competition or infringement of trade secrets, the amount of such profit shall be presumed to be the amount of damage suffered by the right holder, and in case of infringement, it shall not be deemed to be the purpose of estimating the amount of damage caused by the act of infringement. However, in light of the purport of the above provision, the right holder shall assert and prove the actual loss suffered by the act of infringement. Therefore, in case where the right holder proves that there is a loss in the same kind of business as the same kind of damage.

[4] In the case where a business owner's confusion act under the Unfair Competition Prevention Act and the act of causing confusion in the source of goods is infringed, it is possible to claim compensation for damages equivalent to the royalty which would normally be paid in return for allowing the use of miscellaneous damages, business marks, and trade marks, which are goods marks, under Article 750 of the Civil Code.

2.The costs of appeal shall be borne by each party, and the costs of a claim extension in the trial shall be borne by the plaintiff.

The defendant shall not use the word "Dongbu St" as the defendant's trade name; ② The plaintiff shall perform the procedure of cancellation registration for the part "Dongbu St" in the defendant's corporate registry (registration No. 11315) held and managed by the Busan District Court's Commercial Registry; ③ the plaintiff shall pay to the plaintiff the amount of KRW 1 billion and the amount equivalent to 25% per annum from the day following the day of delivery of the copy of the complaint of this case to the day of complete payment (the plaintiff extended the share of the claim for payment from KRW 100 million to KRW 1 billion).

2. The defendant's purport of appeal

The part of the judgment of the court below against the defendant shall be revoked, and the plaintiff's claim shall be dismissed.

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1, Gap evidence 2, Eul evidence 3, Eul evidence 2-1 through 3, Eul evidence 9-1 through 3, Eul evidence 11, Eul evidence 12, Eul evidence 12, the results of the inquiry into the testimony of the witness A and witness B of the original court, and the fact-finding of the member's North Busan District Tax Office, and there is no counter-proof otherwise.

A. On October 27, 1982, the Plaintiff was established in Seoul Special Metropolitan City, and registered in its name "Dongbu District Co., Ltd.". Around 1999, the Plaintiff had been engaged in the manufacture and sale of steel and non-ferrous metal such as cooling steel and steel products, steel structure, machinery and plant business, metal furniture and steel structure manufacture and sale business. Around December 1985, the Plaintiff was released from the company for listing the Plaintiff’s shares. Around 1991, Dongbu Group, a group of 11 affiliated companies, including the Plaintiff, designated the Plaintiff, as the 23th large group group from the Fair Trade Commission. Around 1999, the Plaintiff’s paid-in capital of approximately 1,26.3 billion won, and sales revenue of approximately 1,75.6 billion won, and around 190, the Plaintiff was designated as the 19th group from the 19th group of affiliated companies.

(b)The plaintiff shall have ten agencies located only in Busan and Gyeongnam area, and shall secure the fixed customers of the 300 king and raise sales of 120 billion won in the above area.

C.On the other hand, around April 1986, the defendant started with the trade name of "Dongn Steel Co., Ltd." at the Busan Metropolitan City and the Busan Metropolitan City around April 15, 1991 and completed the registration of the trade name of "Dongn Steel Co., Ltd.", and was sold in the manufacturing area of steel products such as heat smoke plates, follow-up plates, and cooling steel Co., Ltd. by purchasing and processing steel plates in the port integrated steel industry, and selling steel products such as heat combustion plates and cooling steel products in Busan. At the time of 1999, 14 employees as of 199, 350,000 capital, sales amount of 3.15,200,000 won are small and medium enterprises, and the registration of the trade name was completed on April 25, 200 as "Dongn Steel Co., Ltd., Ltd.", but the registration of the business was cancelled ex officio on January 21, 2002.

(d)The parts of the trade name "St", the changed trade name of the defendant, "St", are expressed in Korean language in English language, the English language of "Steel" whose meaning is steel, and, when used in the steel industry, in addition to "St", it is recognized and used as the abbreviation of a steel company engaged in steel industry.

2. The parties' assertion and judgment

A. As to the prohibition of trade name use and the cancellation of trade name registration

(1) The plaintiff's trade name is widely recognized at home and abroad in light of the time of incorporation, sales, and the fact that it is an affiliate of the same subsidiary group. Since the defendant's trade name similar to the plaintiff's trade name causes misconception and confusion with the plaintiff, the defendant's above act constitutes an act of mutual use for improper purpose under Article 23 (1) of the Commercial Act, or an act of unfair competition under Article 2 (1) (a) and (b) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "Unfair Competition Prevention Act"), and asserted that the defendant's act constitutes an unfair competition under Article 2 (1) 1 (a) and (b) of the Unfair Competition Prevention and Trade Secret Protection Act, and sought prohibition and mutual abolition of the same act against the defendant. As to the defendant's trade name, "Dong division" in the plaintiff's trade name is a general and universal word expressing defense, and the defendant's trade name does not pose any risk of misconception and confusion with the plaintiff

(2) At the time the Defendant started to use a trade name after completing a trade name change as “Dongbu Esti Co., Ltd.”, the Plaintiff entered the fourth rank in the sales order of the steel industry in Korea. The Plaintiff’s trade name, including the Plaintiff, was widely known domestically and overseas as the trade name of the company engaging in the manufacture and sales business of steel products, such as cooling steel, etc. from the Fair Trade Commission, and the fact that the Defendant is running the manufacture and sales business of steel products, such as the manufacture and sales business of steel products, such as cooling steel, which are the same as, and similar to, the manufacture and sales business of steel products, such as cooling steel products, such as the Plaintiff’s cooling steel, etc.

(3)In addition, the part of "Dongbu Esti" among the defendant's trade name consists of two words "Dongbu Esti" and "ST", but it cannot be said that the combination results in a new concept. The part of "ST" in its composition constitutes the English origin of "Steel", which is the weak of "Steel" which indicates steel, and thus the defendant's business type is related to steel. Since the part of "stock company" indicates the type of the company, it is only the part of "Dongbu Esti" is the main part of the defendant's trade name. On the other hand, the part of "Dongbu Esti" among the plaintiff's trade name consists of two words "Dongbu Esti" and "ST", but it is not possible to separate and observe that part of "the plaintiff's trade name" and "the other part of the defendant's trade name, which is the main part of the plaintiff's trade name, can not be viewed as the part "the plaintiff's trade name and the other part of the defendant's trade name."

(4) If so, the defendant's act of manufacturing and selling steel products like the plaintiff's "Dongbu Esti Co., Ltd.", using the defendant's trade name, constitutes the first act of confusion under the Unfair Competition Prevention Act. Thus, the defendant is not allowed to use the word "Dongbu Esti" as the defendant's trade name, and the plaintiff is obligated to perform the procedure of cancellation registration as to "Dongbu Esti" in the defendant's corporate register (registration No. 11315) kept and managed by the Busan District Court's Commercial Register (Registration No. 11315).

B. As to the claim for damages

(1) Article 14-2(1)(2) of the former Unfair Competition Prevention Act (amended by Act No. 5814, Feb. 5, 199; hereinafter referred to as the "former Unfair Competition Prevention Act") provides that "where a person whose business profit is infringed due to an act of unfair competition or infringement of trade secrets claims compensation under Article 5 or 11, if the infringing person claims compensation for damages, the amount of such profit shall be presumed to be the amount of damage suffered by the infringing person's business profit." Thus, the amount of such profit shall be presumed to be the amount of damage suffered by the infringing person's business profit. Thus, since the defendant did not know that the defendant had a duty to compensate the plaintiff for damages under the former Unfair Competition Prevention Act (amended by Act No. 5814, Feb. 5, 1999; hereinafter referred to as the "former Unfair Competition Prevention Act") from 1995 to 209,976,269 won by running the same business as that of the plaintiff's registered trade name, the plaintiff's 100 billion won.

(2) First, we examine the claim for damages on the ground of mutual use for the wrongful purpose under the Commercial Act.

(A) Article 23(1) through (3) of the Commercial Act provides that in a case where there is a person using a trade name that may be mistaken for another person's business for improper purposes, either a person likely to suffer loss or a person who has registered his trade name may claim damages in addition to claiming the abolition of his trade name. Thus, in order for the plaintiff to claim damages for reasons of the act of mutual use for the wrongful purpose under the defendant's commercial law, the elements for the claim for damages due to the tort under Article 750 of the Civil Act are ① the defendant's intentional or negligent act, ② the infringement, ③ the burden of proof, and burden of proof.

(B) We examine the following facts: (a) there is possibility that the general public misleads or confuses the Defendant’s trade name with the Plaintiff; (b) the Defendant infringed the Plaintiff’s trade name; and (b) the fact that the Defendant engaged in the manufacture and sales of steel products, such as steel products such as the same as the manufacture and sales of steel products such as cooling steel, similar heat heat plates, latter, and air conditioners, which are operated by the Plaintiff, is as determined in the judgment on the prohibition of mutual use and the claim for cancellation of trade name registration; and (c) the Defendant’s trade name was the original trade name of the Defendant, which was the same as that of the Plaintiff’s trade name, and changed to the current trade name similar to that of the Plaintiff’s trade name, it may be recognized that the Defendant used the Plaintiff’s trade name for an improper purpose to mislead the Plaintiff into the Plaintiff’s business, but there is no evidence to prove that there was a proximate

(3) Next, we examine the claim for damages based on the Unfair Competition Prevention Act.

(A) As to the claim for damages based on the presumption of damages under the Unfair Competition Prevention Act, Article 14-2(1) of the former Unfair Competition Prevention Act (Article 14-2(2) of the same Act applies to the claim for damages arising from an act of unfair competition or infringement of trade secrets, considering the fact that it is difficult to prove the amount of damages where the infringer gains profits from the act of infringement, the amount of such profits is presumed to be the amount of damages suffered by the right holder, and it cannot be deemed to be the purport of estimating damages where there is infringement. Thus, in order to be subject to the above provision, the right holder should assert and prove the actual loss by the act of infringement. However, in light of the purport of the above provision, it is sufficient to view that the degree of assertion and proof of damages arising from the above act of infringement is sufficient to claim and prove the existence of possibility or possibility of damages in the case of products of the same kind, and therefore, if the right holder proves that the products of the same kind are engaged in the same as the infringer, it is difficult to see that the plaintiff's sales business operator and the same type of the same product.

(b)Next, even if the act of confusion between the main body and the act of confusion between the source of goods under the Unfair Competition Prevention Act is infringed, it is possible to claim damages equivalent to the royalty which would normally be paid for the permission of the use of miscellaneous claim for damages or the trade mark and the product mark as stipulated in Article 750 of the Civil Code. However, there is no assertion or proof by the plaintiff as to this point.

(4) Therefore, the Plaintiff’s claim for damages is without merit.

3. Conclusion

Therefore, the defendant should not use the words "Dongbu Esti" as the defendant's trade name in the same and similar words as "Dongbu Esti corporation," and the defendant's corporate registry (registration number No. 11315) which was kept and managed by Busan District Court's commercial registration office, and the plaintiff is obligated to perform the procedure for cancellation registration as to Dongbu Esti's corporate registry (registration number No. 11315). Thus, this part of the plaintiff's claim is reasonable, and the plaintiff's remaining claims are dismissed as it is without merit. Accordingly, the judgment of the court below is just in its conclusion, and all of the plaintiff's claims extended in each appeal and trial by the plaintiff and the defendant are dismissed. It is so decided as per Disposition.

Judges Lee Jin-man (Presiding Judge)