[2] The case holding that the jurisdiction of the court of the Republic of Korea has been recognized on the ground that there is substantial relations between the disputed case and the Republic of Korea to justify the exercise of jurisdiction by the court of the Republic of Korea

[3] The law applicable to a legal relationship with foreign elements (=the law of the country where the trademark is registered)

[4] In a case where the application of a foreign law is not permissible in violation of social order in Korea, whether the application of the foreign law can supplement the defects of the law under the Korean law (affirmative)

[5] The case applying the Unfair Competition Prevention and Trade Secret Protection Act of the Republic of Korea without applying the US ACPA, on the ground that the application of the US Anti-Monobing Consumer Protection Act (ACP) to a claim for prohibition of use and a claim for registration of transfer of the domain name based on the US trademark right is contrary to the social order of the Republic of Korea under Article 10

[6] The meaning of "other person's business mark widely known in the Republic of Korea" under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act, and the standard for determining whether it is widely known in the Republic of Korea

[7] Whether a domain name that is identical or similar to another's mark constitutes an unfair competition act under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act, and the criteria for determining similarity between another's mark and the domain name

[8] The meaning of "the purpose of obtaining other commercial profits" under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act

[9] The case holding that the registration and holding of domain name "myspce.com" similar to the business mark "MYSPACE" widely known in Korea constitutes an unfair competition act under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act

[10] Whether the right to claim the transfer of domain name registration by the person committing an unfair competitive act is recognized as the effect of prohibition of unfair competitive act (negative)

[2] As to the lawsuit filed against the decision on the transfer of domain name by the National Arbitration Commission of the United States, the case holding that the jurisdiction of the Korean court is recognized on the ground that there is the most close relation between the disputed case or between the parties and the Republic of Korea to the extent that the Korean court can justify the exercise of jurisdiction by the court of the Republic of Korea as a competent court in relation to the objection to the decision, and that the exercise of jurisdiction by the Korean court is specified as a competent court in relation to the objection to the decision, thereby contributing not only to ensuring the fairness and convenience of the lawsuit between the parties, but also to ensure the effectiveness of the decision through the economy of the lawsuit and the efficiency and execution of the trial

[3] The applicable law to the effect of trademark rights is reasonable to interpret that the law of the country where trademark rights are registered, which is the country most closely related to the pertinent trademark right, which falls under the law of the place of infringement under Article 24 of the Private International Act. The trademark rights are recognized as the right of each country through an application and registration. According to the principle of territorialism, there are many countries which adopt the trademark rights, and according to which each country's trademark rights are established, transfer and effect are determined by the law of the pertinent country, and the trademark rights are recognized only within the territory of the pertinent country, and as long as the trademark rights are recognized only within the territory of the pertinent country, the country whose trademark rights are most closely related to the pertinent trademark rights are registered shall be deemed the country where the pertinent trademark rights

[4] If the application of a foreign law to a legal relationship in violation of social order of Korea causes a defect in the law that cannot be applied to the pertinent foreign law, it shall be supplemented by the Korean law in light of the purport of excluding the application of a foreign law exceptionally in order to maintain public order and social order in Korea.

[5] The case applying the Unfair Competition Prevention and Trade Secret Protection Act of the Republic of Korea instead of the Unfair Competition Prevention and Trade Secret Protection Act of the Republic of Korea to recognize the duty of prohibiting the use or transfer of the domain name as the effect of the infringement in the Republic of Korea, on the ground that the U.S. trademark right of the Republic of Korea has the same result as that of the Republic of Korea outside the U.S., which is the territory of the U.S., and there is no treaty between the Republic of Korea and the U.S. to recognize the effect of the trademark right of the other country in its country, although the U.S. law of the Republic of Korea, which is the country where the trademark right of the Republic of Korea, is registered, is the applicable law to the claims for prohibiting the use or transfer of the domain name based on the U.S. trademark right of the Republic of Korea

[6] The mark indicating the goods or business of another person widely recognized in the Republic of Korea under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act refers to the case where customers or consumers recognize specific goods or business from other goods or business through it within domestic discharge or within a certain scope, and widely recognize them as being distinguished from other goods or business. Ordinary terms, etc. merely describing or expressing the contents of goods or business or ordinarily used in a normal sense do not have distinctiveness since they have no function of distinguishing goods or business from others. Thus, they are not included in the mark. However, even if they are used for a long time and are widely recognized as indicating certain goods or business by customers or consumers, the mark constitutes a mark of goods or business protected under the Unfair Competition Prevention and Trade Secret Protection Act. In addition, whether the mark is widely known in the Republic of Korea constitutes a standard for determining the period, method, mode, quantity, quantity of business, business scope, etc., and whether it is objectively widely known under the social norms.

[7] Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act provides that the purpose of preventing the registration and possession of a domain name identical or similar to another person's mark for the purpose of gaining unjust profits by taking advantage of the recognition degree and credit of the other person's mark or causing damage to the other person. Thus, if the domain name is registered and held, it cannot be deemed that any mark was used because it did not open a web site using the domain name. Thus, in determining the similarity between the other person's mark and the domain name, the mark itself shall be prepared formally on the basis of the part having distinctiveness, as well as all other factors that contribute to the misunderstanding of the domain name as another person's mark, in light of impression, memory, tobacco, etc. based on the appearance, name or concept of the two marks, it shall be determined on the basis of whether it is not likely to accept both as similar by observing and comparing the two as a whole, as well as by observing and comparing it.

[8] The term "purpose of obtaining other commercial profits" under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act refers to the purpose of gaining unjust profits from the mark by actively making profits or causing tangible and intangible damage, such as property damage or damage of credit, in addition to the purpose of selling or lending the mark to a legitimate holder of authority or a third party, or hindering the registration and use of the domain name of a legitimate holder of authority.

[9] The case holding that the registration and holding of domain name "myspce.com" similar to the business mark of "MYSPACE" widely known in Korea constitutes an unfair competition act under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention and Trade Secret Protection Act

[10] As an effect of the prohibition of unfair competition under the Unfair Competition Prevention and Trade Secret Protection Act, the right to request the transfer of the domain name that has an unfair competition act person's domain name in lieu of the cancellation of the registration of the domain name is not recognized.

2. The plaintiff's remaining claims against the defendant are dismissed.

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

In this case, to the effect that the plaintiff registered and held a domain name "myspce.com" similar to the defendant's business mark "MyS" for illegal purposes, the plaintiff is dissatisfied with the decision of the United States National Arbitration Committee ordering the transfer of the domain name to the defendant in accordance with the uniform domain name dispute resolution policy, and that the plaintiff's use of the domain name does not constitute an unfair competition act and the defendant's right to claim the prohibition of use and the right to claim the transfer of the domain name does not exist on the ground that the use of the domain name does not constitute an unfair competition act. In addition, the defendant asserts that the defendant has the right to claim the prohibition of use and the right to claim the transfer of the domain name pursuant to the Uniform domain name dispute resolution policy and the U.S. Unfair Competition Prevention and Trade Secret Protection Act or the Korea Unfair Competition Prevention and Trade Secret Protection Act.

2. Presumed factual basis

[Evidence] The purpose of the whole pleadings is as follows: A 1 through 5, B 1-1, 2, 3-1 through 3, 4-1 through 5, 6-1 through 15, 7, 8-1 and 2, 9-1 through 6, 10-1, 2, 11, 12-1 and 2, 13-1 through 15, 14-1 through 30, 31-1 through 14, 32-1 through 5, 33-1 and 2, 34-1 and 2, 35 through 60, 61-1 through 7, 62 through 65, 65, 14-1 through 30, 15 through 30, 31-1 and 34-2, 34-1 and 60, and

(a) A party;

(1) The Plaintiff operates various web-sites or runs the Internet-related business, including the creation of web-sites.

(2) The Defendant, as a U.S. legal entity, operates a web site, provides users with personal networking services, various information search services, music services, etc., such as the operation of a friendly space through the Blog or the web-site of users.

B. The defendant's trademark right mark

On February 22, 1996, with the trade name "MySpace, Inc.", the defendant registered and held the domain name "MyS.com" on February 22, 1996, and used the domain name from around 2003 to provide a web site (www. my.com) with a personal networking service via Blobs or Snb website, Internet room operation, and search service for various information provision. The defendant's web site is used in the search category such as "my space Mocom v, MySpace MySce, MySpace, Specals, etc.", and when searching the category, it is linked to other web sites related to the provision of various information (including music listener, video screen, etc.) included in the category, and thus, it has the function of distinguishing the source of service provided by the defendant by the defendant.

In addition, around 2004, the defendant registered the mark "MYSPACE" as the trademark related to the Internet neons service as the U.S. Patent Office (U.S.PTO) No. 291041.

As of December 2006, the Defendant’s website entered 130 million won or more around the world, and among them, the Korean nationality holder was more than 30,000 persons. In addition, in relation to the Defendant’s trade name, trademark or website, and the company run by the Defendant’s Internet portal sites, 1,400 articles were provided through articles search services or knowledge search services of NAV (www.naver.com) holding the highest order of users among the Internet portal sites in Korea, and NAVV (www.naver.com). The articles were provided up to 1,00 items through various information provision services of the next Internet portal sites. Considering that the search number of users of the portal sites is 30 million items, the number of search services through NAV’s knowledge search services is more than 4,000 items, and the number of search services through personal networks is more than 4,000 items, and the number of search services through the portal sites is more than 1,000.

C. The process and possession of the domain name by the plaintiff

The defendant around December 2003 opened a web site using the domain name "Mycom.com" and thereafter started the Internet service business, and around December 2003, the non-party Lokson registered four domain names (MySpce.com, MySPcae.com, MySe.com, MySpace.com,com.com.com) in the form of omitting or adding only one iron from among the defendant's domain names. On December 30, 2005, the defendant requested the suspension of use on the ground that the above domain names constitute the intentional misuse of the defendant's trademark Mycom Mycom, and thus, it infringed the defendant's trademark rights, etc.

D. Type of using the domain name of the plaintiff

After purchasing the domain name of this case, the plaintiff did not open a web site by using the domain name of this case. Since August 2006, the plaintiff opened the domain name of this case to be connected to another web site operated by the plaintiff (www.wesss.com) with the domain name of this case.

The web site, which is so listed, has been used in many places, such as My Act, and when searching the category, it was set up to link to another individual web site providing music services, etc. between users on the Internet. Among the link web site, the term obscenity was also included.

During the process of the instant lawsuit, the Plaintiff opened a website (www.mysce.com) using the domain name of this case and introduced another person’s website that can be recommended as excellent design, and provided a service linked to another person’s website through the distribution advertisement. However, among the web sites introduced or linked, it also includes various images, props, music displays, and other tools necessary for Internet users to create an individual’s web site or to hold a funeral on the Defendant’s web site.

E. Decision on the transfer of domain name by the National Arbitration Commission of the United States and plaintiff's objection

(1) On April 7, 2006, the defendant filed an application for dispute settlement against the plaintiff for ordering the transfer registration of the domain name to the defendant on the ground that the plaintiff owns the domain name similar to the defendant's trademark in bad faith without any justifiable right.

(2) 인터넷주소관리기구(Internet Corporation For Assigned Names and Numbers, 이하 ‘ICANN’이라 한다)는 일반최상위 도메인(generic Top-Level Domain)에 관하여 통일도메인이름분쟁해결정책(Uniform Domain Name Dispute Resolution Policy, 이하 ‘UDRP'라 한다)과 그 절차규정(Rules for Uniform Domain Name Dispute Resolution Policy)을 도메인이름의 등록자와 제3자 사이에 도메인이름의 사용과 관련한 분쟁의 해결을 위한 강제적 행정절차(mandatory administrative proceeding)로 마련해 두고 있다(미국의 국가중재위원회는 UDRP에 따른 분쟁해결기관 중 하나이다. UDRP의 주요 내용은 별지 기재와 같다).

In particular, ① The domain name is similar to that of another person’s trademark or service mark, ② there is no legitimate right or interest in the domain name holder, ③ the holder of the domain name can cancel the registration of the domain name or transfer it to the legitimate right holder (UDRP Article 4(a) and Article 3).

INN compulsory the registration agency to include the contents of UDRP in the terms and conditions of registration, and accordingly the registration agency has a provision that the registrant of the domain name who has agreed to the terms and conditions of registration shall be deemed to have consented to UDRP. The plaintiff also consented to the domain name registration terms and conditions stating that the registration of the domain name of this case is deemed to have been agreed to at the time of registration in SDR.

(3) On June 19, 2006, pursuant to Article 4 (a) of UDRP, the National Arbitration Commission of the United States decided to transfer the domain name to the defendant on the ground that the plaintiff's application had no legitimate right or interest in the domain name, and that the plaintiff's domain name was transferred to the defendant on the ground that the plaintiff's trademark was copied from the defendant's trademark, so it is similar to that of the defendant's trademark that may cause confusion with the defendant's trademark. The plaintiff's Internet users who mistakenly entered the defendant's trademark had such domain name for the purpose of inducing them to the plaintiff's web site.

On June 22, 2006, the date on which the decision was notified pursuant to Article 4(k) of UDRP, the Plaintiff filed a lawsuit in this case with the court on June 22, 2006, which was within 10 business days from the date of the notification of the decision, and the execution of the decision on transfer was suspended as a result of this decision (see Articles 4(k) and 1, 3(b)x iii of UDRP as the competent court in relation to the objection against the decision of UDRP at the time of the application for transfer of the domain name (see Articles 4(k) and 3(b) of UDRP.

On the other hand, the defendant, other than the plaintiff, received a decision to transfer the domain name from the National Arbitration Committee of the United States against those who take over only some of the defendant's domain names and other domain names, and completed the transfer of the domain name in the future as affiliates of the defendant.

2. Issues of the instant case

A. Whether the lawsuit of this case is legitimate (this safety defense)

(1) Whether the Korean court has international jurisdiction over the instant case

(2) Whether the instant lawsuit has interest in confirmation

B. As to the merits

(1) Whether UDRP can be the standard for determining the defendant's right to prohibit the use of the domain name and the right to claim registration of transfer

(2) Determination of the governing law of the defendant's right to prohibit the use of domain name and the right of transfer

(A) Whether the U.S. “ACPS Consumer Protection Act” applies to the “ACPA”

(B) Whether applying the ACP is contrary to the public order and good morals of Korea

(C) Whether Korea's Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "Unfair Competition Prevention Act") is applied

(3) Whether the Plaintiff’s use of the domain name constitutes an unfair competition act under Article 2 subparag. 1(b), (c), and (h) of the Unfair Competition Prevention Act (Optional judgment)

(4) Effect of the prohibition of unfair competition (whether the right to claim transfer of domain name is recognized)

3. Judgment of this court on the issue

A. Determination on this safety defense

(1) Whether international jurisdiction exists

【Defendant’s Claim】

The defendant asserts that the web site that the plaintiff opened a domain name "myspce.com" is English and mainly provides a link to another web site provided in the U.S. to the U.S., so the subject of the plaintiff's confirmation claim has no international jurisdiction in the Korean court because there is no substantial relation with the Korean court.

【Trademark】

According to Article 2 of the Private International Act that explicitly provides for the criteria for recognition of international jurisdiction in disputes over judicial legal relations (cases with foreign elements) with the international nature, “where a party or a party to a lawsuit has substantial relations with the Republic of Korea, the court shall have the international jurisdiction. In this case, in determining the existence of substantial relations with the Republic of Korea, the court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction (Article 2(1)). In addition, the court shall consider the provisions of domestic law to determine the existence of international jurisdiction, but shall fully consider the special nature of international jurisdiction in light of the purport of paragraph (1) (Article 2(2)).” As such, Article 2 of the Private International Act recognizes the international jurisdiction in cases of a dispute over the criteria for recognition of international jurisdiction, which is a cause of lawsuit, or where the parties to a lawsuit, including the original and the defendant, have “actual relations,” and declares that the existence of such substantive relations should be determined in accordance with the ideology of allocation of international jurisdiction and reasonable principles, to the extent that the parties or the parties concerned parties exercise the substantive relations.

In addition, in determining the existence of a specific jurisdiction, the jurisdiction provisions of domestic law, such as territorial jurisdiction provisions of the Civil Procedure Act, such as the defendant's address, the principal office or business office of a corporation or organization, the place of illegal acts, and other judicial matters provided for in the Civil Procedure Act, may be recognized once against the defendant in the Republic of Korea. However, since the provisions on judicial matters in domestic law were established from a domestic point of view, the special nature of the international jurisdiction should be considered (Paragraph 2). More specifically, the court must consider not only personal interests such as the fairness, convenience and predictability of the parties to the lawsuit, but also personal interests such as the appropriateness, prompt, efficient, and effectiveness of the judgment, and thus, it should also be considered together with the interests of the court or the state.

The Plaintiff’s lawsuit is filed in order for the Plaintiff, a prior registrant of the domain name, to maintain the registrant’s name after the decision of the UDRP was issued by the UDRP to transfer the domain name pursuant to UDRP, which is designated by the UDRN. The Plaintiff’s lawsuit is whether the Plaintiff’s act of registering and using the domain name is an unlawful act of unfairly infringing the Defendant’s existing intellectual property right, which is the Defendant’s intellectual property right in the offline. Furthermore, prior to the decision of transfer of the domain name, the Plaintiff’s domestic address was using the Internet-related service business, and the main language of the web site established using the domain name of this case was English, but the transfer decision of the domain name of this case was the main business place of the Plaintiff, and there was a Korean registry for the performance of the obligations under Article 8 of the Civil Procedure Act, and thus, there is a dispute between the parties in Korea and the competent court in Korea.

In addition, after the decision to cancel or transfer the domain name in the compulsory administrative procedure under UDRP was made, the holder of the domain name must file a lawsuit against the applicant of the compulsory administrative procedure within 10 business days from the date of the decision against the competent court (Article 4 (k) of UDRP) which the applicant selects as the competent court in relation to the objection against the decision at the time of the application for compulsory administrative procedure (the address of the holder of the domain name who has the main office of the registrar or can be referred to in the registration agency's later database). However, at the time of the application for the transfer of the domain name of this case to the National Arbitration Commission of the United States of America, the defendant selected the competent court which has jurisdiction over the location of the main office of the State Syden as the competent court.

The above competent court is specified as the competent court where the plaintiff and the defendant are entitled to seek an objection against the decision of the National Arbitration Commission of the United States on the transfer of the domain name of this case by the defendant applying for dispute resolution pursuant to UDRP in relation to the domain name of this case and stated that this court, which is the legal ground of mutual jurisdiction, shall be subject to its jurisdiction in relation to the decision of the dispute resolution agency, and the plaintiff is entitled to seek an objection against the decision of the transfer of the domain name of this case between the plaintiff and the defendant. The plaintiff shall file a lawsuit

In light of such circumstances, the filing of the instant lawsuit to the effect that the instant lawsuit is dissatisfied with the transfer decision, etc. of the domain name in this court is planned by the UDRP in the compulsory administrative procedure by the UDRP, which had already been initiated by the Defendant upon the Defendant’s motion, to be selected as the competent court, and thus, this court’s exercise of jurisdiction also contributes to ensuring the fairness and convenience of the lawsuit between the parties, consistent with the expectation of the parties to the lawsuit. Furthermore, in accordance with UDRP, the Plaintiff may only file a lawsuit with this court and prevent the enforcement of the transfer decision. As such, the instant court has the close relation with the instant lawsuit in terms of ensuring the effectiveness of the judgment through the economy of lawsuit and the efficiency and enforcement of trial

Therefore, there is a substantial relationship between the disputed case and Korea to the extent that it can justify the exercise of jurisdiction by the Korean court. Accordingly, the court has the international jurisdiction over the lawsuit of this case. The defendant's above assertion is without merit.

(2) Existence of interest in confirmation

In addition, the defendant asserts that even if the defendant did not have the right to use the domain name and the right to claim transfer of the domain name against the plaintiff under the Unfair Competition Prevention Act, the defendant can apply for transfer of the domain name under UDRP regardless of the Unfair Competition Prevention Act at any time, and the defendant can file a lawsuit to confirm that the defendant has the right to claim transfer of the domain name separately from the plaintiff. Thus, the plaintiff has no interest to seek confirmation that there is no right to claim transfer of the domain name and right to claim transfer of the domain name

However, according to Article 4 (k) of UDRP, an applicant for a mandatory administrative procedure does not prohibit a person from filing a lawsuit with a competent court to resolve the dispute separately regardless of the commencement or completion of the procedure. However, a holder of a domain name may file a lawsuit to resolve the dispute between the parties separately regardless of the compulsory administrative procedure like the applicant, as well as a holder of the domain name in question who has received a decision to cancel or transfer the domain name in order to suspend the execution of the decision, a lawsuit to the court selected as the competent court by the applicant for the compulsory administrative procedure to object to the decision.

In full view of the above circumstances, the plaintiff may file a lawsuit to the effect that the plaintiff is dissatisfied with the decision to transfer the domain name of this case by the National Arbitration Commission of the United States pursuant to Article 4 (k) of UDRP, and seek confirmation that the defendant's right to prohibit the use of the domain name of this case and the right to claim the transfer of the domain name of this case do not exist is in line with the purpose of the lawsuit of this case for the suspension of the execution of the decision to transfer

B. Judgment on the merits

【Plaintiff’s Claim】

The Defendant’s mark “Mycom” is merely a combination of general masters and thus does not have distinctiveness as the Defendant’s business mark and does not correspond to the Defendant’s trademark or business mark. In addition, the Plaintiff’s domain name is not similar to the Defendant’s business, and even if the Plaintiff uses the domain name, it does not cause confusion with the Defendant’s business, nor does it impair the Defendant’s trademark or business mark’s distinctiveness or reputation. In addition, the Plaintiff purchased the domain name for the purpose of using it for the actual Internet-related business, and does not have any other unlawful purpose. Accordingly, the Plaintiff’s use of the domain name “mypcecom” does not constitute an unfair competition act under the Unfair Competition Prevention

【Defendant’s Claim】

The plaintiff consented to the application of UDRP at the time of the registration of the domain name and the defendant also applied for the transfer of the domain name pursuant to UDRP and all of the plaintiff and the defendant are bound by UDRP. Therefore, as long as the plaintiff's use of the domain name of this case satisfies the requirements of Article 4 (a) of UDRP, regardless of whether the plaintiff's act constitutes an infringement of intellectual property rights under the positive law, the defendant has the right to claim the transfer of the domain name against

Even if UDRP cannot serve as the basis for determining the existence or absence of the defendant's right to transfer the domain name as alleged by the plaintiff, since the use of the plaintiff's domain name infringes on the defendant's trademark right, it shall be applied by the US ACP as the governing law, which is the infringed place, and the Korean Unfair Competition Prevention Act shall not be the governing law. Therefore, as long as the use of the plaintiff's domain name constitutes cyber piracy prohibited by ACPP, the defendant has the right to claim a transfer of the domain name against the plaintiff.

A. Even if the U.S. ACP cannot be the applicable law of this case and Korea's Unfair Competition Prevention Act should be applied, the mark "May Act" constitutes a business mark widely recognized domestically, and the plaintiff's domain name constitutes a business mark similar to the defendant's mark, thereby causing confusion with the plaintiff's business operation, impairing the distinctiveness and reputation of the defendant's mark, or registering, retaining, and using a domain name similar to the defendant's mark for the purpose of obtaining unjust profits. Thus, the plaintiff's use of such domain name constitutes an unfair competition act under Article 2 subparagraph 1 (b), (c), and (h) of the Unfair Competition Prevention Act.

(1) Whether UDRP can be the standard for determining the defendant's right to prohibit the use of the domain name and the right to claim registration of transfer

UDRP, which is designated by the ICN which manages the domain name as a part of the terms and conditions applied between the registry and the registrant, is not between the registry and the registrant, but between the registry and the third party and the registrant, provides for the procedures for resolving disputes arising in relation to the domain name. Furthermore, the substantive legal relationship surrounding the domain name between the third party and the registrant.

However, the provisions pertaining to the non-judicial dispute settlement procedures under UDRP are incorporated as part of the terms and conditions applicable between the registrar and the registrant, and the registrant may serve as the content of the contract between the registrar and the registrant upon consent to the terms and conditions. However, in the event that the registrant and the owner of a trademark right, etc. who has no contractual relationship with the registrar become the plaintiff or the defendant of the court, barring any special circumstance, the registrant consented to apply UDRP in advance regarding disputes that may arise in the future at the time of the registration of the domain name. Unless there are special circumstances, the third party's consent to the application of UDRP after filing an application for the dispute settlement pursuant to UDRP, and the third party's consent to the application of UDRP cannot be deemed as a contractual relationship or legal relationship corresponding thereto between the third party and the registrant. Therefore, in this case, UDRP cannot be the basis for determining the substantive substance between the plaintiff and the defendant.

In addition, UDRP is a norm prepared by ICNN, a non-governmental organization, to resolve disputes over the domain name more promptly and in a more confluent manner than litigation, and it is only prepared as a norm on internal administrative procedures to improve the appropriateness of the registration administration of the registrar, and it is not necessary to provide judicial procedures to determine whether the registration or use of the domain name infringes on another person's trademark right.

Therefore, in the lawsuit of this case filed by the plaintiff against the decision of transfer of the domain name under UDRP to withhold the execution of the decision of transfer, UDRP cannot serve as a judicial standard for determining the defendant's right to prohibit the use of the domain name of this case and the existence of the right to claim transfer registration. The defendant's above assertion cannot be accepted.

(2) Determination of the governing law of the defendant's right to prohibit the use of domain name and the right of transfer

(A) In the instant case, the Defendant’s claim for the prohibition of use and for the registration of transfer of the domain name against the Plaintiff is based on the property right of a private person. The Plaintiff’s address is Korean in the Republic of Korea, the Defendant is a U.S. corporation with its headquarters located in the Republic of Korea, and the Plaintiff’s claim for an act in the Republic of Korea is a U.S. corporation, but international elements are included in the claim based on the rights conferred by the U.S. “The Anti-

The claim for the prohibition of use and the registration of transfer of the domain name based on the US ACPA differs from the purport and character of the claim based on the tort aimed at compensating the damage in the past caused by the definition and fairness, and is based on the exclusive and exclusive effects of the US trademark rights. Therefore, it is reasonable to view the legal nature of the claim for the prohibition of use and the registration of transfer of the domain name based on the US trademark rights as the effect of trademark rights

In addition, Article 24 of the Private International Act provides that "the protection of intellectual property shall be governed by the law of the place of infringement" with respect to the validity of trademark rights. This provision provides that "the protection of intellectual property shall be governed by the law of the country of infringement." This provision stipulates only the governing law of the infringement of intellectual property since it is not so necessary to provide general governing law of the intellectual property, and in relation to infringement of intellectual property, only the country of protection recognized by the protection of the intellectual property may be recognized. Therefore, the governing law of the effect of trademark rights shall be interpreted to be in accordance with the law of the country where the trademark right is registered, which is the country most closely related to the trademark right in question which falls under the law of the place of infringement of Article 24 of the Private International Act, is recognized as the right of each country. This provision is interpreted to be the country where trademark rights are registered, and according to the law of the country concerned, the effect of trademark rights is recognized only within the territory of the country concerned, and as long as the effect of trademark rights is recognized only within the territory of the country concerned, the country concerned shall be interpreted as the country concerned.

Therefore, the law of the country where the trademark right concerned is registered shall be deemed to be the law of the country where the trademark right concerned is registered, and the law of the United States, which is the country where the trademark right in the United States is registered, shall be the law of the prohibition of use and transfer of the domain name.

(B) However, the ACPA of the United States (Article 1125(d) of the United States Code) provides that when using a domain name which is similar or similar to that which is likely to cause confusion or confusion with a trademark having distinctiveness for unjust purposes and which is identical or similar to a trademark, which is likely to cause confusion or confusion with a well-known trademark, the court may order cancellation or cancellation of the registration of the domain name or transfer the domain name to the owner of the trademark when using the domain name. In addition, in determining the purpose of illegality, the court may order the registrant of the domain name to cancel or cancel the registration or transfer the domain name to the owner of the trademark. In addition, in determining the purpose of illegality, whether the registrant of the domain name intended to damage the credibility of the trademark by inducing consumers from the online domain of the owner of the trademark right to a site connected through the domain name, whether the registrant of the domain name intended to cause confusion with the main body of the operation of the site, thereby taking commercial benefits or impairing the value of the trademark.

Therefore, according to the ACPA, even if the domain name is registered with the registration agency in Korea, the request for cancellation of the registration of the domain name or for the registration of the transfer of the domain name may be accepted within the territory of Korea as to the act of infringing trademark rights of the United States by using the domain name similar to that of another person's trademark for unlawful purpose.

However, Korea adopts the territorial principle as to trademark rights, and according to which each country's trademark rights are in force only within the territory of the country concerned, recognition of cancellation (Prohibition of Use) or transfer registration of the domain name in Korea based on the trademark rights of the United States of America would bring about the same result as that of the trademark rights of the United States of America to the Republic of Korea outside the United States, which is its territory, and thus go against the territorial principle that Korea is adopted. In addition, there is no treaty between the Republic of Korea and the United States, which stipulates that the trademark rights of the other country should be recognized in its own country, so recognizing the duty of prohibiting the use or transfer of the domain name in Korea as the effect of the prohibition of the infringement of the trademark rights of the United States of America, cannot be accepted in light of the basic ideology of our trademark law order. Accordingly, it is reasonable to deem that the obligation of prohibiting the use of the domain name of the Republic of Korea and the obligation of transferring the registration of the domain name of the Republic of Korea to the plaintiff by applying the above provisions of the United States ACP is contrary to social order in Korea.

However, in a case where the application of a foreign law to a legal relationship in question is not possible against social order in Korea, the application of the foreign law should be supplemented by the Korean law in light of the purport of excluding the application of the foreign law exceptionally in order to maintain public order and good morals and social order in Korea. Therefore, it is necessary to examine whether the use of the domain name of this case by the plaintiff under the Unfair Competition Prevention Act of Korea constitutes an unfair competition act against the defendant.

(3) Whether an act of unfair competition falls under Article 2 subparagraph 1 (h) of the Unfair Competition Prevention Act

(A) Whether the defendant's trade name or business "my" constitutes a widely known mark domestically.

A mark indicating the goods or business of another person widely known in the Republic of Korea refers to cases where customers or consumers recognize it separately from other goods or business through it within a certain scope from domestic discharge or within a certain scope. Ordinary terms, etc. merely describe the contents of goods or business, or ordinarily used in a normal sense, do not have distinctiveness as to the goods or business, and thus, do not constitute a mark, but even if they are used for a long time and thus have become widely recognized as indicating certain goods or business by customers or consumers, they constitute a mark of goods or business protected by the Unfair Competition Prevention Act. In addition, whether the mark is widely widely known in the Republic of Korea or widely known in the Republic of Korea is one of the criteria for determining the use period, method, pattern, quantity, business scope, etc., and whether it is objectively widely known in terms of social norms (see Supreme Court Decisions 96Do2650, Dec. 12, 1997; 205Do6834, Nov. 25, 2005).

In this case, the "My Act", which is used by the defendant's trade name and the web site operated by the defendant, has the meaning of "B" or "B", and the defendant has provided the web site users with personal neonsing service, which provides them with a space that allows them to create a Brogs or the web site and divide their friendship among the users through it, or a search service for various information provision.

In light of the above circumstances, the defendant's "My Act" cannot be deemed as a common name that describes the contents of the defendant's business or uses it in ordinary meaning, and it cannot be deemed as an ordinary name used to distinguish between one type of business and another type of business by specifying one of the types of business generally classified. My Act used in relation to Internet service provided by the defendant functions as an objective mark of transaction performing the function of distinguishing from other types of business. In addition, in light of the above defendant's trade name, trademark, or website, the number of publication of the articles, the contents of the articles, the search number of Internet users through the Internet portal site, the number of Internet users' search number through the Internet portal site, and the number of members who joined the defendant's web site, the defendant's "My Act" is widely known to domestic ordinary consumers and its function was recognizable to the extent that the plaintiff's business was separated from those of the specific source. Therefore, it is recognized that the defendant's "My Act" is a reasonable ground to recognize the defendant's "My Act" as being widely known to the defendant's trader or user.

(B) Whether the domain name of this case is similar to the defendant's mark

Article 2 subparag. 1 (h) of the Unfair Competition Prevention Act provides that the purpose of preventing a person from registering and holding a domain name identical or similar to another person’s mark in order to gain unjust profits by taking advantage of the recognition degree and credit of another person’s mark, or from causing damage to another person. If a domain name is registered and held, no web site using the domain name can be deemed to have used a mark since it was not opened, it constitutes an unfair competition act as prescribed in the above provision. Therefore, in determining similarity between the other person’s mark and the domain name, the mark itself shall be compared formally based on the part having distinctiveness among the domain names, as well as all other factors that contribute to the misunderstanding of the domain name as another person’s mark, taking into account the appearance, name or concept of the two signs, memory, relationship based on impression, etc. based on the appearance, name or concept of the other person’s mark, whether it is likely to accept the two as a similar one by observing and comparing the two as a whole, as well as whether it is likely to accept

In the instant case, comparing the Plaintiff’s domain name “myspce” and “Myspce”, which are the Defendant’s business mark, it is similar to the Plaintiff’s appearance and name when comparing the Plaintiff’s domain name with “myspce” in the form of omitting only “a” among the Defendant’s business mark.

In addition, according to the premise facts as seen earlier, the Plaintiff used the domain name as a method of distributing it to another web site operated by the Plaintiff, and on the web site so distributed, search tecaco called “My Advertising”, which constitutes the Defendant’s business mark, was being used in various places. When searching the category, it was set up a link to another web site that provides services similar to the Defendant’s Internet service. During the litigation of this case, the Plaintiff opened a web site using the domain name of this case and provided services that are linked to another party’s web site to either introduce other party’s web site or introduce other party’s web site or provide services that are linked to other party’s web site. Among the other party’s web site, various items are also included in the Defendant’s web site that is necessary for Internet users to create or stolen the

In light of the above use of the plaintiff's domain name and the operational status of the web site opened by using it, since the domain name of this case is in the form where only "a" is omitted among the defendant's business marks, and if Internet users intend to enter the defendant's domain name, they are induced to the plaintiff's web site, and the plaintiff's web site provides services similar to the defendant's Internet service through other web sites using the defendant's mark as search domain or linked to the defendant's Internet service, and thus, it is highly likely for Internet users to confuse the plaintiff's web site as the defendant's web site. Therefore, the domain name of this case is similar to the defendant's business mark.

(C) Whether the Plaintiff has the objective of gaining commercial benefits

Article 2 subparagraph 1 (h) of the Unfair Competition Prevention Act provides that "the purpose of obtaining other commercial profits" shall be construed as "the purpose of obtaining a legitimate right to the mark or a third party," and it shall be construed as "the purpose of obtaining a legitimate right to the mark or the purpose of selling or lending the mark, or the purpose of hindering the registration and use of the domain name of a person who has a legitimate right to the mark, in a form contrary to the principles of public order, good faith, or good faith, or the purpose of obtaining a benefit from the mark by causing tangible and intangible damage, such as property damage or damage

According to the above premise, the plaintiff was a person who had been engaged in Internet service business using various domain names prior to the registration of the domain name of this case and had been engaged in the Internet service business by using the defendant's business mark around March 2006, after the defendant started the Internet service business by using the defendant's business mark, the plaintiff also purchased and registered the domain name of this case in the form where only "a" was omitted from the defendant's business mark. The plaintiff used the domain name as a method of distributing it to another web site operated by the plaintiff for five months around August 2006, where the domain name of this case was not used, and it was linked to the web site of this case by providing services similar to the defendant's Internet service or obscenity service similar to the defendant's Internet service. In addition, while the plaintiff's lawsuit of this case was pending, the plaintiff provided services related to the defendant's web site that was opened by using the domain name of this case as a web site of this case.

In full view of the creation and transfer process of the domain name of this case, the plaintiff's use of the domain name of this case and the actual status of the web site operation, it can be confirmed that the plaintiff solicited Internet users who mistakenly entered part of the plaintiff's domain name to the web site operated by the plaintiff and let the induced users provide Internet services similar to the defendant and connect them to the web site that can damage the defendant's credit, thereby gaining active economic benefits as well as gaining profits from the plaintiff's tangible and intangible damage to the defendant.

Therefore, insofar as there is no evidence to support that the Plaintiff obtained title from the Defendant to use the domain name of this case similar to the Defendant’s business mark, the Plaintiff’s registration and possession of the domain name of this case constitutes an unfair competition act under Article 2 subparag. 1(h) of the Unfair Competition Prevention Act.

(4) Whether there is concern about infringing or infringing business interests

The plaintiff opened a web site using the domain name of this case and uses the domain name, and provides Internet services similar to the defendant's Internet services, so it is recognized that the defendant's business interest is or is likely to be infringed due to the plaintiff's unfair competition act.

(5) Effects of unfair competitive acts

Therefore, the defendant can file a claim against the plaintiff for the prohibition of unfair competition on the basis of Article 4 of the Unfair Competition Prevention Act. Therefore, the plaintiff is obligated not to use the domain name of this case against the defendant.

However, as an effect of the prohibition of unfair competition under the Unfair Competition Prevention Act, it cannot be interpreted that the domain name holder has the right to claim the transfer of the domain name to himself in lieu of the cancellation of the registration of the domain name.

4. Conclusion

Thus, the defendant only has the right to prohibit the use of the domain name of this case against the plaintiff, and does not have the right to claim the registration of transfer.

Therefore, the plaintiff's claim is reasonable within the scope of the above recognition, and the remaining claims are dismissed as there is no reasonable ground.

Judges Lee Dong-sung(Presiding Judge)