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

A. The Plaintiff’s mutual use and registration

1) From December 2008, the Plaintiff is operating a sports university entrance training institute in the building located in Ulsan-gu ( Address 2 omitted) (hereinafter “Plaintiff’s business building”).

2) On December 2, 2008, the Plaintiff completed business registration, which covers the Plaintiff’s business building as the place of business, under the trade name of “○○ Building Building Training Institute”. On June 9, 2014, the Plaintiff corrected the said trade name as “○ Building Building Building Building”.

3) The Plaintiff operated the above entrance training institute on December 2008, using the building outer wall board stating “ACADDDMY at the time of △△△△” from around December 2008, and has used the outer wall board stating “○○ in time of the above correction” from the time of the above trade name correction.

4) On September 1, 2014, the Plaintiff: (a) the Plaintiff’s business building was its place of business as the Plaintiff’s business; and (b) completed the registration of a trade name with the type of business as “the time of physical transfer.”

B. The defendant's trade name and trademark registration

1) The Defendant has operated a sports university entrance training institute under the trade name of Ulsan-gu ( Address 1 omitted) (hereinafter “Defendant’s business building”).

2) On July 23, 2014, the Defendant completed business registration using the Defendant’s business building as its place of business under the trade name “○○ Building” and operated a private teaching institute for entrance into the Sports University by using outer walls and signboards stating “○○ Building” from around that time.

3) On June 2, 2014, the Defendant filed an application for trademark registration with respect to the trademark of character “○○ ○○ Spot” as a designated service business (e.g., sports hall operation business, sports practice guidance business, etc.).

In addition, on July 26, 2014, the Defendant filed an application for trademark registration with regard to the combination trademark of diagrams and letters as shown in the separate sheet as designated service business, and completed the registration of the above trademark on November 26, 2014.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 5, 7, Eul evidence Nos. 1 and 2 (including provisional evidence with serial numbers) and the result of inquiry into the Eastsan Tax Office of this Court, the purport of the whole pleadings

2. Determination

A. The plaintiff's ground for claim

The plaintiff asserts that the defendant, who operates the same kind of business as that of the plaintiff, uses the same trade name as that of the plaintiff, and thus, it is presumed that the above trade name is used for an unlawful purpose pursuant to Article 23(4) of the Commercial Act, and sought a prohibition on the use of the defendant's trade name pursuant to Article 23(

B. Determination

1) Issues of the instant case

Article 23(1) of the Commercial Act provides that "no person shall use any trade name that may be mistaken for another person's business for an improper purpose." In this case, the question is whether the trade name of the plaintiff and the defendant may be mistaken for that of another person and whether the defendant used the trade name for an improper purpose.

2) Whether to recognize the possibility of mistake

In light of the fact that both the Plaintiff and the Defendant’s business building are located in the same Metropolitan City and the same Gu, and both the Plaintiff and the Defendant’s business are the same kind of private teaching institute as a sports university entrance training institute, and that both the Plaintiff and the Defendant use the word “○○○”, the trade name of the Defendant is likely to be mistaken for the Plaintiff

3) Whether an unlawful purpose is recognized

A) Whether Article 23(4) of the Commercial Act is applied

First, it is examined whether the defendant is presumed to have used the trade name for improper purposes in accordance with Article 23 (4) of the Commercial Code.

Article 23(4) of the Commercial Act provides that "any person who uses a trade name registered by another person for the same business in the same Special Metropolitan City, Metropolitan City, Si, or Gun shall be presumed to have been used for an unlawful purpose." This provision is to be presumed to have the purport that if another person uses the same trade name as the trade name in the same Si/Gun after the trade name is registered, it shall

In the instant case, even according to the Plaintiff’s assertion, when the Defendant started to use the signboard “○○ building site” on July 18, 2014. The Plaintiff’s trade name was registered and the Defendant started to use the said trade name on September 1, 2014, and thus, it cannot be deemed that the foregoing provision is applicable.

B) Determination on “illegal purpose”

For the purpose of Article 23(1) of the Commercial Act, the term "illegal purpose" means an intention to use a name indicating another person's business in his/her own business to mislead or confuse the general public with the business of another person indicated in his/her name (see Supreme Court Decision 94Da31365, Sep. 29, 195).

In this case, the Plaintiff used the Plaintiff’s trade name “○○ University” from around 2004 to around 2014. From around December 2008 to around June 2014, the Plaintiff asserted that the Plaintiff used the Plaintiff’s trade name “○○ University” and “○○ University”, but according to the Plaintiff’s evidence No. 6, the Plaintiff’s trade name was used in the building located in the Ulsan-gu ( Address 3 omitted), “○○ University Research Institute” and it is difficult to recognize that the Plaintiff had registered the Plaintiff’s business with the trade name “○○ University” and “○○ University” that it was difficult to recognize that the Plaintiff had used the Plaintiff’s trade name as “○○ University” and “○○ University’s business name,” and that there was no evidence to acknowledge that the Plaintiff had used the Plaintiff’s trade name “○○ University” from around 204 to around 209.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Jeon Soo-chul (Presiding Judge)