2. The plaintiff's remaining claims are dismissed.

3. The supplementary part of the costs of lawsuit is borne by the Intervenor joining the Defendant, and the 1/2 of the part except this shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

A. The Plaintiff is a Italian legal entity that manufactures and sells visuals, clothing, bedclothes, frying, fashion liquid, bags, etc. The Defendant is a company with the purpose of distribution business, trade brokerage business (export and import business) and trade intermediation business, electronic parts, images, sound and communications equipment manufacturing and selling business, electronic communications sales business, liquid franchise business, etc.

B. The Plaintiff is the owner of the trademark right of the attached Table (1) (hereinafter referred to as “instant registered trademark”) (hereinafter referred to as “trademark right of the instant registered trademark”), and each mark of the instant registered trademark and the attached Table (2) are marked and sold on the Plaintiff’s product.

C. The Defendant sold the leather mobile phone case (hereinafter referred to as “Defendant products”) with each mark listed in the attached Form (3) from September 2009 to February 6, 2013 through its website (www.bombnetde.com) operated by himself, and suspended the sale after receiving a warning issued by the Plaintiff. [Grounds for recognition] The Defendant did not dispute, Gap’s entries in the attached Forms (1) to 5, 7 through 9, and 20 copies (including each number; hereinafter the same shall apply), the purport of the entire pleadings, and the purport of the whole pleadings.

2. Occurrence of liability for damages;

A. Whether trademark infringement (the same or similar nature of a mark and designated goods) is infringed on the trademark right from November 13, 2010 (the date on which the establishment of the trademark right of this case was registered) to February 6, 2013

가) 전제사실에 의하면, 이 사건 등록상표와 피고가 사용한 별지(3) 가. 의 표장들은 그 각 외관이 모두 방패 모양 도안으로서 우측 상단부터 좌측 아래를 향하여 45도 각도로 그어진 사선에 의해 구분된 두 구역 중 좌상 부분에는 이탤릭 글씨체로 'L' 및 그 문자를 관통하는 'Tonino'의 문자열이 기재되어 있고 우하 부분에는 고개를 숙이고 오른쪽으로 뿔을 겨누는 황소가 그려져 있는 모양으로서 유사하여 전체적으로 상품출처의 오인·혼동의 우려가 있다 할 것이므로, 이 사건 등록상표와 위 각 표장들은 서로 유사하다.

B) Determination of similarity of products subject to determination of whether trademark rights are infringed on the designated goods of the registered trademark shall be based on whether the use of a trademark identical or similar to the compared goods is likely to be misunderstood as goods manufactured or sold by the same business entity. However, determination shall be made in accordance with the general transaction norms by comprehensively taking into account the circumstances of the transaction, such as quality, shape, use, and part of production and sale, and the scope of consumers, which are the characteristics of the goods themselves, in light of the overall circumstances of the transaction (see, e.g., Supreme Court Decisions 2006Do2650, Nov. 27, 2008; 2004Hu3225, Jun. 1

According to the premise facts, the key key of the registered trademark of this case among the designated goods of the trademark of this case is satisfying materials, and all of the Defendant products are satisfying, and are used for the use of fashion sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sat sats

C) Therefore, the Defendant’s selling of Defendant’s products similar to the designated goods of the instant registered trademark using the attached Form 3 (A) similar to the instant registered trademark is an act infringing the trademark right of this case.

2) Whether the defendant has owned the right to use the trademark

The Defendant granted the Plaintiff’s right to use the instant registered trademark to the “Suss”, a company located in Hong Kong, and Russ granted the Plaintiff the right to use the instant registered trademark in Korea to the “Suss Korea Co., Ltd. (hereinafter “Co., Ltd.”) and granted the Plaintiff the right to use the instant registered trademark in sequence to the Defendant’s Intervenor (hereinafter “ Intervenor”), who operates the present LM Co., Ltd. (hereinafter “Co.”), and if the Defendant purchased the Defendant products from the Intervenor, then the Defendant asserted that the Defendant’s purchase of the Defendant products from the Intervenor holding the right to use the instant registered trademark does not constitute the instant trademark infringement.

According to the overall purport of the statements and arguments set forth in Gap evidence Nos. 12 and 29 through 31, it is recognized that the plaintiff entered into each license agreement as to the mark of the plaintiff's registered trademark of this case (at the time of the establishment of the two registered trademark of this case, before November 13, 2010) or the mark of the plaintiff's registered trademark of this case (at the time of the registration of the establishment of the two registered trademark of this case, before November 13, 2010) or attached Form Nos. 2 below with the following table. In case of the contract set forth in Nos. 1 of the table below, each contract limits the scope of the right to use the trademark to the company as "specific goods for a company with large size of sales and retail," and it is not possible to transfer the right to use, and in case of a contract set forth in No. 2 or No. 4, "it is impossible to transfer the right to use".

A person shall be appointed.

As such, in addition to granting the right to use the Plaintiff’s trademark under the condition that the Plaintiff would not grant the Plaintiff’s trademark under the condition that the product items and the period of granting the right to use the product is set, the Plaintiff granted the Plaintiff the right to use the trademark in Korea, or granted the Plaintiff the right to use the trademark in Korea directly or directly, as alleged by the Defendant. As to whether there are circumstances to deem, the entry of the evidence No. 3 alone is insufficient to recognize it, and there is no other evidence to acknowledge it. Accordingly, the Defendant’s defense is without merit, without having to further examine it.

3) A person who infringed a trademark right of another person by negligence of the defendant is presumed to have been negligent in the infringement (Supreme Court Decision 2013Da21666 Decided July 25, 2013).

The defendant purchased and sold leather mobile phone cases with the mark attached in attached Form 3 (A) from the intervenor. The defendant asserted that the intervenor "buriion Korea, holding the right to use the trademark of this case in Korea, granted the right to use it to the present ELM, and the present ELM was believed by the present ELM after obtaining confirmation that "I would have granted the right to use the trademark of this case again to the intervenor," and therefore, the defendant was not negligent in the infringement of the trademark of this case even if Buriion Korea did not have the right to use the trademark of this case.

On the other hand, the defendant's above assertion is merely that he heard from the intervenor that he believed that he had the right to use the registered trademark of this case, and the defendant, as alleged in the above, purchased and sold the defendant's product from the intervenor, and there is no specific argument as to the fact that there was a circumstance to justify the plaintiff's belief that he had been given the right to use the trademark to the Brazil Korea in spite of his duty of care, such as investigating and confirming whether the right to use the trademark has been granted to the plaintiff who is the trademark holder in advance, or even though he investigated and confirmed such fact, there is no specific circumstance to justify the fact that the plaintiff performed the duty of care as the seller, such as investigating and confirming whether he had been given the right to use the trademark from the plaintiff who is the trademark holder, or that he had been given the right to use the trademark to

4) Sub-committee

Therefore, the Defendant is liable to compensate the Plaintiff for damages arising from the infringement of trademark rights during the period from January 1, 2010 to February 6, 2013, 2013, which is the date the establishment of the trademark right of this case was registered (the Plaintiff is also liable for damages arising from the Defendant’s act during the foregoing period’s damages arising from the Defendant’s act during the foregoing period’s tort, etc. as well as the infringement of trademark rights, but as long as the liability for damages arising from the infringement of trademark rights is recognized,

(b) The defendant's act from September 209 to November 12, 2010;

1) Whether trademark rights are infringed

The plaintiff asserts that the trademark right of this case was registered internationally on February 20, 1984 and subsequently designated the Republic of Korea on September 3, 2008, and thus, it should be protected under the Korean Trademark Act from September 3, 2008. Therefore, the defendant's act from September 3, 2009 to November 12, 2010 constitutes an infringement of the trademark right of this case.

On the other hand, the trademark right is established from the date of establishment registration (Article 41(1) of the Trademark Act), and as seen earlier on November 13, 2010, Article 86-14(1) of the Trademark Act provides that "an international application which is international registration registered under the Protocol on the Madrid Agreement concerning the International Registration of Marks and designates the Republic of Korea as a designated state (including subsequent designation)" shall be deemed an application for trademark registration under this Act. The proviso of Article 86-2 provides that "in the case of an international application which designates the Republic of Korea after the designation of the Republic of Korea, the date of subsequent designation shall be deemed the date of application for trademark registration under this Act" and therefore, on September 3, 2008, the Republic of Korea has the status of an applicant for trademark registration under the Trademark Act of Korea. Accordingly, the Plaintiff’s above assertion on the premise that the Plaintiff acquired the trademark right of this case from the date of subsequent designation is without merit.

2) Whether the act constitutes an unfair competitive act

A) The plaintiff's assertion

The plaintiff asserts that each mark listed in the attached Forms (1) and (2) is widely recognized in the Republic of Korea as a mark indicating the plaintiff's goods and business, and that the defendant attached each mark listed in the attached Form (3) similar to the plaintiff's above mark to the defendant's product and sold it through the web site operated by the defendant. This argues that the defendant is liable for damages suffered by the plaintiff since it constitutes an unfair competition act falling under Article 2 (1) 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Unfair Competition Prevention Act"), an act of confusion between the plaintiff's goods and the business entity, and an act of dilution of

B) The act of confusion as to the source of goods, and the act of confusion as to the proprietor

Whether a mark indicating another person's goods or business has been widely known in the Republic of Korea under Article 2 subparagraph 1 (a) and (b) of the Unfair Competition Prevention Act is a standard for the period of use, method, pattern, quantity of use, scope of transaction, etc., and whether it is objectively widely known under the social norms, and whether it is determined as at the time of infringement (see, e.g., Supreme Court Decision 2007Do10562, Sept. 11, 2008).

Comprehensively taking account of the respective descriptions, images, and arguments in Gap evidence Nos. 4, 5, and 6, the plaintiff sold the fashion products using marks in the attached Forms (1) and (2) from September 2008 in Korea, and tobacco products using marks in the attached Forms (2) from April 2012 from around April 2012. On the other hand, since the plaintiff commenced a sales business using the above marks in Korea from September 2008 until November 12, 2010, it appears that the time interval between the plaintiff and the above infringement of trademark rights is not long, and the plaintiff's assertion that there is no other objective evidence to acknowledge the plaintiff's sales or sales of the products within the scope of domestic sales or other domestic goods, the plaintiff's aforementioned assertion that there is no other objective evidence to acknowledge the plaintiff's sales of the products from September 2008.

C. dilution of well-known trademarks

In light of the legislative intent and its legislative process of Article 2 subparagraph 1 (c) of the Unfair Competition Prevention Act, the "marks indicating others' goods or business, which are widely known in the Republic of Korea," unlike the cases of (a) and (b) shall be interpreted to mean "those which have been well-known beyond the extent of the main place of origin" (Supreme Court Decision 2002Da13782 Decided May 14, 2004). In this regard, it is reasonable to interpret that each of the marks in subparagraph 1 (c) of Article 2 of the Unfair Competition Prevention Act (attached Form 1), which indicate the plaintiff's goods or business, cannot be recognized to have been widely known in the Republic of Korea (attached Form 1), and therefore, the plaintiff's assertion on this part is without merit, premised on the fact that the above marks have been acquired beyond the degree of domestically well-known.

3) Whether the act constitutes a tort under the Civil Act (use of others’ outcomes)

A) The plaintiff's assertion

The plaintiff's personnel who have each mark listed in the attached Forms (1) and (2) are the result constructed by the plaintiff's considerable effort and investment, and the defendant's act constitutes a tort under the Civil Act, since the defendant's act constitutes a tort under the Civil Act, since it violated the plaintiff's legal protection value by taking advantage of the marks similar to the above marks in the defendant's product without permission, taking advantage of the plaintiff's efforts and investment.

B) Relevant legal principles

The Supreme Court decided on March 29, 2012 that "an act of infringing upon the competitor's rights and interests which are worthy of legal protection, by using the outcomes constructed by the competitor's considerable effort and investment for one's own business without permission in violation of business ethics or fair competition order" and "an act of infringing on the competitor's rights and interests" is an act of unfair competition and constitutes an act of unfair competition under the Civil Act. The Unfair Competition Prevention Act was partially revised into "Act No. 11963 (Enforcement of January 31, 2014)" and "an act of unfair competition under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act is an act of using the outcomes created by the competitor's considerable effort and investment for one's own business in violation of fair trade practice or fair competition order, and thus, it constitutes an act of unfair competition under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act which is newly established and newly established as an act of unfair competition under Article 2 (1) of the same Act.

However, since the former Unfair Competition Prevention Act only lists the types of unfair competition acts under Article 2 subparagraph 1 (a) through (i) of the former Unfair Competition Prevention Act, it has become difficult to cope with the new type of unfair competition acts due to technology development and market change, and it has been tried to solve this problem by interpretation of legal principles or legislation. Considering the following points, it is reasonable to interpret the above Supreme Court's legal principles and the provisions of the above (j) as the subject of regulation of new types of unfair competition acts that do not fall under the category of unfair competition acts regulated by the former (a) through (i), and unless there are special circumstances, it shall not be considered as the category of acts under Article 2 subparagraph 1 (a) through (i) of the former Unfair Competition Prevention Act, but with respect to the degree of not meeting the specific requirements under each of the above items, it shall not be considered as the rate of unfair competition acts under subparagraph (j) or the provisions of subparagraph (j) of the previous Supreme Court's precedents.

① The issues of the above Supreme Court precedents were that new types of acts that do not fall under the category of acts under Article 2 subparag. 1 (a) through (i) of the Unfair Competition Prevention Act were problematic.

Article 2 subparag. 1(a) of the Unfair Competition Prevention Act provides that "an act of confusion as to the owner of a product, an act of confusion as to the owner of a product under item (b), an act of dilution with a well-known trademark under item (c), an act of using a domain name with a well-known domain name, and an act of reproducing the type of product under item (i) also constitutes "an act of free transfer" (j) which is established by considerable effort and investment of the competitor against business ethics or the order of fair competition. The provisions under items (a) through (i) of items (j) can be seen as a specific requirement for establishing an illegal act under the Civil Act or item (j) of items (i). However, even if each item does not meet the requirements under items (a) through (i), if it can be viewed as a tort under the Civil Act or an act of unfair competition under item (a) through (j) of items (i), and thus, it can be recognized that the legal requirements under items (i) through (j) of items (i) are not satisfied.

(4) Excessive interpretation of the general provisions of unfair competitive acts is likely to excessively restrict the freedom of competition, which is the basis of a market economy.

(5) In a case where the period of a business act using a mark of goods (or business) of another person, which does not have knowledge, extends over before and after the establishment of the trademark right of another person, if the above act was committed by the infringement of trademark right for the period after the establishment of the trademark right is registered, and if the period before the establishment of the trademark right is applied by a juristic act or an unfair competition act of item (j) under the Civil Act for the period before the establishment of the trademark right is registered, and if the prohibition or damages are ordered, it may be unfair because it was the same as the infringement of trademark

C) Determination

In accordance with such interpretation theory, the defendant's act of claiming that the plaintiff is a tort under the Civil Act is that the defendant attached and sold the plaintiff's attached Form (1) and (2) to the defendant's product. This is because Article 2 subparagraph 1 of the Unfair Competition Prevention Act was attached and sold to the defendant's product.

(a)It is, as it is, the type of conduct provided for in sub-paragraphs (c) and therefore, it does not meet the plaintiff's goods or business marking requirements, etc. as above.

(a)As long as it is determined that it is not recognized as an act of unfair competition under items (a) through (c), it shall not be viewed as a new type of act that does not correspond to the type of act under items (a) through (c) as an act of unfair competition under the Civil Act by 'forging another person's outcome'. Therefore, the plaintiff's assertion is without merit.

3. We examine the scope of liability for damages arising from the infringement of trademark rights by the Defendant’s act from January 1, 2010 to February 6, 2013, which was recognized as the same as the above 2.A.

A. Claim on the presumption of damages equivalent to the "ordinary usage fee" under Article 67 (3) of the Trademark Act

On April 1, 2008, the Plaintiff concluded a licensing agreement with the Hong Kong located in Hong Kong, and agreed to receive US$62,890 on an average of 62,890 (hereinafter referred to as "U.S.") each year for the use of the instant registered trademark, and accordingly, the amount which the Plaintiff would normally be entitled to receive for the use of the instant registered trademark shall be USD 62,890 per annum. Based on this, when calculating the amount of damages for about 2 years and 3 months due to the Defendant's infringement pursuant to Article 67 (3) of the Trademark Act, it would be USD 141,502 (i.e., USD 62,890, USD 12,12X27, and USD 12,000) as a priority claim within the extent of the amount converted into won.

In light of the purport of Gap evidence No. 10 and the whole arguments, since the plaintiff entered into a licensing agreement with Hong Kong on April 1, 2008 on the registered trademark of this case, the plaintiff's exclusive right to use shall be 57,000 dollars for the first period of the contract, 62,70$30 for the second year, 68,970 for each year, and the third year's exclusive right to use shall be 'No. 10% for each year', and the defendant's exclusive right to use shall be 'No. 10% for each year, 'No. 10% for each year', 'No. 10', 'No. 100 for each country', 'No. 6 years, Luxembourg, Netherlands, New Zealand, South Africa, Sweden, Turkey, and ASEAN, 'No. 10% for each of these countries', 'No. 2007, 'No. 100'.

B. Recognition of damages under Article 67(5) of the Trademark Act

1) The court may, notwithstanding Article 67(1) through (4) of the Trademark Act, recognize a reasonable amount of damages based on the purport of the entire pleadings and the result of examination of evidence where it is extremely difficult to prove the amount of damages due to the nature of the pertinent fact, even though the existence of damages is recognized in litigation concerning infringement of trademark rights (Article 67(5) of the Trademark

2) The following circumstances are revealed in light of the purport of the present case as a whole and the result of the examination of evidence.

○ The Defendant asserts that the total amount of 3,143 products of the Defendant was sold as indicated in the attached Table No. 22,626,807, gross sales amount of KRW 71,090,708, gross sales amount of KRW 45,746,070, as stated in the attached Table No. 4, from September 2009 to February 6, 2013.

○○ The business performance of the Defendant’s assertion is merely a unilateral argument of the Defendant, and there is no evidence to acknowledge it, so there is sufficient probability that the actual business performance of the Defendant is more likely to exceed the content of the Defendant’s assertion as the Defendant’s own person. However, the Plaintiff cannot trust the business performance of the Defendant’s assertion, and the Defendant’s actual business performance exceeds the content of the above assertion. As such, there is no evidence to acknowledge the accurate business performance exceeding

○○ The sum of the total sales volume, annual sales volume, gross sales profit, and operating profit among the above business performance of the Defendant’s assertion is recognized as having no dispute over at least such business performance insofar as the Defendant is the person in whose case the Defendant is the person in question. However, as shown in the attached Table 4, there are considerable differences depending on each annual sales volume, sales volume, gross sales profit, and operating profit. However, there is no evidence to support the Defendant’s assertion that the business performance during the entire sales period of the Defendant’s products sharply decreased compared to that during the previous sales period, the Defendant assumed that the Defendant had calculated the same monthly sales performance during the entire sales period, and accordingly estimated the trademark infringement period. Accordingly, if the Defendant sold at least 2,031 Defendant’s products during the trademark infringement period, as indicated in the attached Table 5, it can be deemed that the Defendant recorded at least KRW 79,258,790, gross sales profit, gross sales profit, 45,848, 29,567,582.

3) As seen in the above 2, the Defendant may be deemed to have recorded at least the gross sales profit of at least 45,948,872 won, operating profit of at least 29,567,582 won during the period of infringement of trademark rights, and the Defendant’s actual business performance is not admitted as evidence, but merely based on the Defendant’s business performance claimed, and thus, it is reasonable to deem that the Defendant’s actual business performance considerably exceeds it. In full view of all other circumstances indicated in the pleadings, such as the pattern of the infringement of trademark rights of this case, the amount of damages that the Defendant is liable to compensate the Plaintiff is determined as at least 45,000 won.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 45,00,000 won for damages arising from the infringement of the trademark right of this case and damages for delay calculated at the rate of 5% per annum under the Civil Act from February 6, 2013, which is reasonable to dispute about the existence or scope of the defendant's obligation to pay to the plaintiff from February 6, 2013 to July 16, 2015, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Park So-young

Judges Yellow-il