All appeals filed by B, C, D and Prosecutor are dismissed.

A. With respect to the labeling and advertising that may cause mistake or confusion as a medicine or health functional food among the facts charged in the instant case, Defendant B, C, and D (i.e., mistake or legal principles, the contents of the advertisement on the Defendants’ “M” products (hereinafter “M”) explained about the material quality function and effect of the patented component, and thus, indicated and advertised the patent is a legitimate exercise of the right guaranteed by the Constitution and the Patent Act. Furthermore, the above patent constitutes the certification of the Korean Intellectual Property Office, which is an affiliated organization of the central administrative agency, and thus, it is allowed to display and advertise the product under the proviso of Article 8 (1) 6 (b) of the Enforcement Rule of the Food Sanitation Act, and thus, it cannot be deemed that it constitutes an advertisement that may cause mistake or confusion as a medicine or health functional food. Thus, the lower court convicted the Defendants of this part of the facts charged by misapprehending the facts or by misapprehending the legal principles, thereby finding it likely to mislead or confuse it as a medicine or health functional food product prohibited by the Food Sanitation Act.

In addition, even if the Defendants’ advertising constitutes an advertisement with the content that is likely to mislead or confuse as medicine prohibited by the Food Sanitation Act or functional health foods, the actual period during which the Defendants advertised as above, from October 1, 2014 to November 11, 2014, and from January 14, 2015 to January 14, 2015, was requested to suspend advertising presumed to be an exaggerated advertisement. The lower court recognized that Defendant B’s criminal period was from July 1, 2014 to January 14, 2015, and recognized the criminal period of Defendant C from September 1, 2014 to January 14, 2015. < Amended by Act No. 12873, Jan. 14, 2015>

Shebly, even if all the facts charged against the Defendants are found guilty, the court below’s sentence against the Defendants (Defendant B: imprisonment).