2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The following facts are either disputed between the parties, or acknowledged in full view of the contents of Gap evidence 1-1 through 3, Gap evidence 2-2, Gap evidence 4, Gap evidence 14-1, 2, and Gap evidence 15-1 through 6, and the whole purport of the arguments.

A. The Plaintiff is a U.K. company that manufactures and sells various products, such as clothes, etc. (which is recognized as high-priced goods to ordinary consumers) through various trademarks, including Burberry, global well-known “Burberry,” and the Defendant is a company that operates large retail stores in Korea.

B. The Plaintiff registered 58 trademarks (registration on July 10, 201) on the attached list with 1. 1. trademark (registration on July 10, 2001) as designated goods by using 148 goods, including Trts/Pours, indicated in the attached list, as the designated goods, 58 goods, including Trts and Pourts, as the designated goods. The Plaintiff registered 3. trademark (registration on September 7, 1998), listed in the attached list, 54 goods, including Trts, gracks, and Pourts, with each of the Korean Intellectual Property Office of the Republic of Korea (hereinafter each of the above trademarks is referred to as “instant trademarks”).

C. Meanwhile, on November 12, 2005, at the (trade name omitted) point in Ulsan-gu (hereinafter “Ulsan-gu store”), the Defendant’s (trade name omitted) operated in Ulsan-gu (hereinafter “Ulsan-gu store”) sold each of the products of this case with a mark almost identical to the trademark of this case without the Plaintiff’s permission, and on December 21, 2005, at the (trade name omitted), the Defendant’s (trade name omitted) located in Yeongdeungpo-gu Seoul Metropolitan Government (hereinafter “the instant Trts”); and in combination with the above Trts, the products of this case were sold.

2. The parties' assertion

A. Summary of the plaintiff's assertion

(1) The defendant sold the product of this case using the mark identical to the plaintiff's trademark of this case widely known domestically. The act constitutes an act that causes confusion with the plaintiff's product, which constitutes an act of unfair competition under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Act (hereinafter "Unfair Competition Prevention Act"), and an act that infringes the plaintiff's trademark right.

(2) Accordingly, the Defendant is not obliged to manufacture or sell the instant trademarks and the clothing, including Titrts, using the instant trademarks, or possess them for the purpose of transfer or delivery, and thereby, to compensate the Plaintiff for the damages of KRW 50,000,000 (=property damages of KRW 20,000 + KRW 30,000,000).

(3) In the first place, the Defendant is liable as a seller of the instant product, and the Defendant is in the preparatory position to lend the Defendant’s name to Nonparty 1 Co., Ltd., the actual seller of the instant product, and objectively direct and supervise Nonparty 1 Co., Ltd., and thus, the Defendant is liable for the act of Nonparty 1 Co., Ltd. under Article 756 of the

B. Summary of the defendant's assertion

The product of this case is not sold by the defendant, but sold by the non-party 1 corporation that leased the store from the defendant, and the defendant did not lend the defendant's name to the non-party 1 corporation or direct and supervise the non-party 1 corporation.

3. Determination

A. Judgment as to the plaintiff's primary claim

According to Gap evidence 2-2 and Eul evidence 3-2, each of the above products was sold within each of the above branches of the defendant, and the receipts for each of the above products were issued under the defendant's name, but the above facts alone are insufficient to recognize that the defendant is a seller of the product of this case. However, considering the above facts, the defendant's statement Nos. 1, 2, Eul evidence No. 6, Eul No. 7-1 and Eul evidence No. 7-2 and the result of the on-site inspection of this court's testimony by the witness No. 2, if the defendant directly sells the products owned by others, the defendant's sales of the products are not made under the entrustment of others, and there are various forms, such as that the tenant who leased the products from the defendant sells the products to the defendant, and pays the defendant a fixed rent or a proportional amount of sales, and the defendant's sales of the products of this case to the defendant No. 1 and No. 2, No. 2500, Jun. 15, 2005.

Therefore, the above part of the plaintiff's assertion is without merit.

B. Judgment on the plaintiff's conjunctive claim

(1) Whether the tort of the non-party 1 corporation is constituted

The facts that non-party 1 corporation sold each product of this case with a mark identical to the plaintiff's trademark of this case, which is identical to the trademark of this case, which was widely known domestically at the defendant's forum point and Ulsan-gu store, are as seen earlier. The act of non-party 1 corporation constitutes an act of infringing the plaintiff's right to the trademark of this case and an act of unfair competition. According to the evidence Nos. 6 and Eul No. 14, the non-party 1 corporation concurrently imported the product with the plaintiff's trademark of this case as business, and even before selling each product of this case, the non-party 1 corporation may recognize the fact that it had experience in investigating the violation of the Trademark Act by selling the product of this case, which is not a authentic product, and according to the above facts, the non-party 1 corporation was at least negligent as to the above infringement.

In regard to this, the defendant asserts that each of the products of this case is imported by a legitimate trademark right holder or a person who is duly entitled to use the trademark right through legitimate procedures, and thus, it does not infringe the plaintiff's trademark right. However, it is not sufficient to recognize this only with the entries of No. 6, the testimony of the witness No. 2 and the fact-finding results on the head of Incheon Airport Customs Office of this Court, and there is no other evidence to acknowledge

(2) Whether employer liability is recognized

(A) In cases where a person permits another person to use his/her own name in connection with a particular business of another person, if the business is an internal relationship between the other person and the other person, even if the business is not an employee of the nominal owner, the business is the business of the nominal owner and the other person does not differ from the expression of the employee of the nominal owner. If the person permitted to use the nominal name causes damage to another person by intention or negligence in the performance of his/her duties, the person permitted to use the nominal name shall be liable for damages pursuant to Article 756 of the Civil Act. In the case of the nominal name relationship, regardless of whether the nominal owner is actually under the direction and supervision, whether the user was in a position to direct and supervise the illegal person shall be determined on the basis of objective and normative aspects, regardless of whether the nominal name relationship is actually under the direction and supervision (see Supreme Court Decision 2007Da26929, Jun. 28, 2007, etc.).

(B) First, as to whether the Defendant permitted Nonparty 1 to use the Defendant’s name in selling each of the instant products, it cannot be deemed that the Defendant permitted Nonparty 1 to use the Defendant’s name on the sole basis of the fact that the Defendant simply issued receipts for the products sold by Nonparty 1 corporation under the name of the Defendant. However, in full view of the entries of Nonparty 15-1 through 6, and No. 1 and No. 2, and the purport of the entire pleadings in this court’s on-site inspection, the following circumstances are revealed: (a) the Defendant has a large number of retail stores with nationwide branches; (b) the Defendant has trusted the Defendant’s awareness of such recognition; and (c) the Defendant’s products were purchased by the Defendant’s lessees and sold by the Defendant, regardless of the Defendant’s sales performance; (d) whether the Defendant’s sales performance directly affects the Defendant’s operating profit; and (e) whether the Defendant’s sales performance directly sells the products, such as the type and location of the Defendant’s brand, etc., depending on the type and location of the Defendant’s sales.

In full view of the statements in Gap evidence Nos. 18, Eul evidence Nos. 18, Eul evidence Nos. 1 and 2, and the testimony of non-party Nos. 2, the whole purport of this court's on-site inspection results and arguments, the non-party No. 1 corporation has sold high-priced imported goods with a trademark, such as butteruria, Stens, and Plalass, from the defendant for about 10 months, on the basis of exclusive use area. The above store had separate partitions to distinguish the above store from other stores, and the signboards with "import multi-purpose" were installed separately, and it can be recognized that the non-party No. 1 corporation directly sold the products to the defendant's employees. Although the receipts of the products sold in the above store were issued in the defendant's name, in consideration of the location, form, sale method, etc. of the above store, the plaintiff's assertion that the non-party No. 1 corporation used the above part is not justified.

On the other hand, according to the evidence, the defendant set up and distributed Burg products sales events to promote the sales of the non-party 1 corporation at Yeongdeungpo-gu stores, and the name of the defendant's branch office and each branch office exercising such events. The non-party 1 corporation leased a short-term store from the defendant for seven days, unlike Ulsan-nam-gu store, and the above store was not a signboard, and is not a space separate from other stores, and only a simple door store was installed. The above simple door board was attached only to POP (which was set up next to the product display) which was written as Burg (the notice was set up) and there was no indication that there was a separate seller. The defendant can find that the non-party 1 corporation directly sold clothing products in the name of the defendant's branch office identical or similar to the above simple door board that used the non-party 1 corporation, and the defendant's sales of the above products in the name of the defendant's consumer 15%, and the defendant can find out the above facts that the defendant's sales receipt was issued under the defendant's name.

(C) Furthermore, as to whether the Defendant was in a position to command and supervise the business of the non-party 1 corporation’s permanent use of each branch of the Defendant, including health zone and the above permanent mackers (No. 2) provides that “the non-party 1 corporation shall enter into this lease contract for the purpose of sale by occupying a specific space of the Defendant as temporary event store, and employees of the non-party 1 corporation and the non-party 1 corporation shall enter into the lease contract for the purpose of sale (Article 3) and shall not raise an objection to the measures such as leaving a store in violation of the contract regulations (Article 16(2)). The non-party 1 corporation and the non-party 1 corporation shall enter into the lease contract with the Defendant and the long-term lessee in consultation with the lessee and the non-party 2, and the lessee shall be subject to the prior approval of the change of the contract and the contract terms and conditions for sale (Article 16(1)).

(D) Therefore, the defendant is the employer of the non-party 1 corporation, and is liable to compensate the plaintiff for damages incurred by the non-party 1 corporation due to the illegal act during the course of performing his duties at the Yeongdeungpo-si Office.

(3) Scope of damages

Furthermore, as to the amount of damages that the Defendant is liable for damages to the Plaintiff, the Plaintiff sought payment of KRW 20 million as property damages on the premise that the Defendant’s profit derived from Nonparty 1’s tort is about KRW 20 million. However, the Defendant’s profit derived KRW 20 million as sales by Nonparty 1’s company at the Ulsan-gu store and Yeongdeungpo-gu store is recognized by the purport of the entire pleadings. Meanwhile, as seen above, Nonparty 1’s tort at the Ulsan-gu store is not recognized by the Defendant’s responsibility for the tort at the Ulsan-gu store, Ulsan-gu. Meanwhile, there is no evidence to deem that both Nonparty 1’s products sold at the Yeongdeungpo-gu store as to Nonparty 1’s tort at the Yeongdeungpo-gu store was of the same kind as the instant Titts. Thus, it is difficult to view the Plaintiff’s profit as the Plaintiff’s entire profit due to the sales at the Ulsan-gu store and Yeongdeungpo-gu store. Therefore, the Plaintiff’s above part of the above assertion is without merit.

On the other hand, Article 67(5) of the Trademark Act and Article 14-2(5) of the Unfair Competition Prevention Act provide that if it is extremely difficult to prove facts necessary to prove the amount of damages due to the nature of the facts in question, even though damage was incurred, the court shall recognize a reasonable amount of damages based on the overall purport of pleadings and the result of examination of evidence. In light of all circumstances recognized in light of the following: (a) the total sales of the goods on which the trademark of this case was attached at the Youngdepo point are KRW 10,52,00; (b) the Defendant’s profits are KRW 1,507,80; (c) the Defendant’s sales of the goods on which the trademark of this case was attached at the Youngdepo point are KRW 69,00; (d) the sales price of the Titts sold at the Youngde point is KRW 2,00,000,000.

In addition, the plaintiff also sought consolation money of KRW 30 million on the ground that the plaintiff's reputation and credit have been damaged by the infringement of the trademark right of the non-party 1 corporation. However, in case where the property right has been infringed by other person's tort, mental suffering shall also be deemed to have been restored by compensation for property damage. In addition, in case where there is any mental damage that cannot be recovered by the compensation for property damage due to the damage of honor and credit, other than property damage, if there is any mental damage that cannot be recovered by itself due to the damage of reputation and credit, the compensation for such mental suffering must be paid. However, there is no evidence to acknowledge that the plaintiff's credit has been damaged by the infringement of the trademark right of the non-party 1 corporation, or

(4) Determination on the claim for prohibition

Furthermore, the Plaintiff also sought a claim against the Defendant to prohibit the sale, etc. of the product on which the instant trademark was attached, but the Defendant’s liability as an employer under Article 756 of the Civil Act regarding the Defendant’s illegal act of Nonparty 1 is limited to the duty to compensate for damages. In addition, it cannot be deemed that the Defendant’s obligation to prohibit the act of infringement or unfair competition under the Trademark Act or the Unfair Competition Prevention Act is limited to the duty to compensate for damages, and there is no need to impose

Therefore, the plaintiff's claim for this part is without merit.

C. Sub-committee

Therefore, from November 6, 2006, the day following the notice of complaint filed by the plaintiff for the plaintiff 2,000,000 won and the day following the notice of complaint filed by the plaintiff, the defendant is obligated to pay damages for delay at the rate of 5% per annum under the Civil Act from August 20, 2008, which is deemed reasonable for the defendant to dispute about the existence and scope of his/her obligations, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges within the scope of judges (Presiding Judge)