[2] The case holding that the trade name "Korea Investment Company" does not constitute a trade name prohibited from being used in accordance with Article 23 of the Commercial Act in relation to "Korea's high speed of a limited partnership company", which is a trade name for prior registration

[2] In a case where the trade name "Korea Investment Company", which is a prior registration trade name, sought a prohibition of mutual use on the ground that it constitutes a trade name that may be mistaken for another person's business for unjust purposes pursuant to Article 23 of the Commercial Act, the case dismissing a claim for prohibition of mutual use on the ground that the trade name "Korea Investment Company", which is a prior registration trade name, is not the same as "limited partnership company our height, appearance, name, and concept," and is not the same as one another, and there are no special circumstances to believe that it is possible to use a trade name that may be mistaken for another person's business for unjust purposes.

(a) implement the procedure for the cancellation of ownership transfer registration completed on January 19, 2010 under No. 2132 and No. 2133 for each motor vehicle listed in the separate sheet;

(b) Delivery of each motor vehicle listed in the separate sheet;

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The above paragraph 1-2 (b) may be provisionally executed.

A. The Plaintiff Company is a corporation incorporated on October 19, 199 with its trade name as “limited partnership company our high speed”, “233-8 of the budget-raising budget-raising budget-raising budget-raising YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY

B. On August 25, 2009 and August 26, 2009, Nonparty 2, the denial of Nonparty 1’s representative member of the Plaintiff Company, completed the registration of resignation and the registration of the resignation of the representative member that Nonparty 1 transferred all shares to Nonparty 2 and retired from the Plaintiff Company, and the registration of the resignation and the registration of the representative member that Nonparty 2 acquired all shares of the Plaintiff Company and entered the Plaintiff Company.

C. Accordingly, on December 9, 2009, Nonparty 1 filed a lawsuit against the Plaintiff Company and Nonparty 2, such as confirmation of the absence of the above member’s general resolution (Seoul District Court Red Branch 2009Gahap1877), and the above court rendered a judgment that accepted all Nonparty 1’s claims on June 25, 2010. The above judgment became final and conclusive as the Plaintiff Company’s appeal period and the withdrawal of Nonparty 2’s appeal.

D. Meanwhile, the Defendant Company was established on December 23, 2009, where Nonparty 2 had been under the lead of Nonparty 2, including confirmation of the absence of a resolution at a general meeting of members, and the head office, etc., as the “limited partnership our society” and “the head office, etc. was changed to 686-4 (580-2, Dec. 28, 2009, respectively, to 426-8, May 24, 2010, etc.) of the budget-based Eup in the Chungcheong-gun budget-raising budget-raising budget-raising budget-raising.”

E. On January 19, 2010, Nonparty 2 sold each of the vehicles listed in the separate sheet to the Defendant Company as the representative member of the Plaintiff Company, and completed the ownership transfer registration in the name of each of the Defendant Company under Articles 2132 and 2133 of the same day. At that time, Nonparty 2 delivered the vehicles listed in the separate sheet to the Defendant Company.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2-1, Gap evidence 3-1, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings

2. Determination on the claim for prohibition of mutual use

A. Summary of the plaintiff's assertion

The defendant company is a company established by the non-party 2, who actually operated the plaintiff company, on the ground of his or her matrimonial relationship, and whose trade name "limited partnership our high-speed tourism" or "high-speed tourism", "Korea tourism", "Korean high-speed fishing", and "Korean events" are the same or similar trade name as that of the plaintiff company, and are used for the same business as that of the plaintiff company, under which the non-party 2, who actually operated the plaintiff company, is the same as that of the plaintiff company.

Therefore, in relation to the pre-registration or pre-use trade name of the Plaintiff Company, “limited partnership Korea”, which is used by the Defendant Company, constitutes a trade name that could be mistaken for another person’s business for unjust purposes pursuant to Article 23(1), (2), and (4) of the Commercial Act, and its use should be prohibited.

B. Determination

(1) As to the Plaintiff Company’s pre-registration trade name “limited partnership company Korea’s high speed”

Article 23(1) of the Commercial Act provides, “No person shall use another person’s trade name for an improper purpose.” Article 23(4) of the same Act provides, “The person who uses another person’s trade name registered for the same business in the Special Metropolitan City, Metropolitan City, Si, or Gun shall be presumed to have been used for an improper purpose.” However, Article 30 of the Commercial Registration Act amended by Act No. 9749 of May 28, 2009 provides, “In order to ensure the freedom of mutual choice by relaxing restrictions on trade name, and to enhance transparency in the registration of trade name, it shall not be registered unless it is clearly distinguishable from those registered by another person for the same business in the Special Metropolitan City, Metropolitan City, Si, or Gun.” The former provision provides, “The same trade name as those registered by another person for the same business in the Special Metropolitan City, Metropolitan City, or Gun shall not be registered for the same purpose as those for the same business as those for the same business as those for the other person’s trade name,” and it shall be interpreted that it may not be registered within a certain scope of the Unfair Competition Prevention Act.

In light of such interpretation, the term "Korean limited partnership company", the trade name of the defendant company, is the same as "limited partnership company our high-speed" and its appearance, name, and concept, which are registered by the plaintiff company, and thus, cannot be deemed the same as the same trade name. Furthermore, there is no special circumstance to deem that the defendant company uses a trade name that may be mistaken for the business of the plaintiff company for illegal purposes even based on all evidence submitted by the plaintiff.

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

(2) As to the unregistered pre-use trade name of the Plaintiff Company

In the event that the Plaintiff Company uses multiple trade names registered as “limited partnership company our high-speed,” etc. in parallel with the same business, it is against the principle of a trade name set forth in Article 21 of the Commercial Act, and thus, it cannot be protected as a trade name. In addition, the trade name of the remaining unregistered prior use, other than “Korea” is merely a trade name similar to the trade name of the Defendant Company, and no special circumstance exists to deem that it falls under Article 23(1) of the Commercial Act, as seen in the preceding paragraph, and even in the case of “Korea Investment” which is a trade name that can be deemed the same as the trade name of the Defendant Company, it is insufficient to recognize the Plaintiff Company as having used “Korea Investment” as a trade name only with the statement set forth in Article 23(9)-4 of the Commercial Act.

Therefore, the plaintiff's assertion on this part also does not seem to be any mother or reason.

3. Determination on cancellation and request for the delivery of a vehicle

As seen earlier, if there is any defect in the resolution of the general meeting of members that appointed Nonparty 2 as the representative member, Nonparty 2 was disqualified for the representative member of the Plaintiff company from the beginning. As such, the sales contract on January 19, 2010 concerning each motor vehicle listed in the separate sheet concluded by Nonparty 2 in the name of the representative member of the Plaintiff company is null and void. Accordingly, each registration of transfer of ownership in the name of the Defendant, which was made on the ground of the above sales contract, is an invalid registration without any cause.

Therefore, the defendant is obligated to implement the procedure for cancellation of ownership transfer registration completed for each motor vehicle listed in the separate sheet to the plaintiff as owner of each motor vehicle listed in the separate sheet, and deliver each motor vehicle listed in the separate sheet.

In regard to this, the defendant asserted that the Supreme Court precedents (Supreme Court Decision 82Meu1810 delivered on March 22, 1983) do not affect the validity of the sales contract and the registration of transfer of each motor vehicle recorded in the separate sheet, which occurred prior to the confirmation of non-existence of the judgment. However, the above Supreme Court precedents are related to the litigation conducted as a representative of the company prior to the confirmation of the judgment, and are not applicable to this case where the disposal act is at issue under the substantive law.

4. Conclusion

If so, the plaintiff's cancellation and the vehicle delivery claim are justified, and the claim for the prohibition of mutual use is dismissed as there is no reason.

[Attachment] List: omitted

Judge Han Dong-soo (Presiding Judge)