A. The defendant shall pay to the plaintiff 159,30,947 won and 115,897,77 won among them, 5% per annum from January 1, 2008 to October 13, 2010, and 20% per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 80% of the total litigation cost shall be borne by the Plaintiff, and 20% by the Defendant respectively.

3. The part on which a provisional execution is not declared by the first instance court from among the provisions of subparagraph 1 (a) may be provisionally executed;

Defendant: The part against the Defendant among the judgment of the first instance court is revoked, and the corresponding Plaintiff’s claim is dismissed.

【Evidence A’s entries of evidence Nos. 1 through 6, 22, 30 through 33, 44, 56 (including paper numbers, and evidence No. 56, the same as evidence No. 4) and the purport of the whole pleadings

A. The Plaintiff is a person engaged in the business of supplying advertising articles under the trade name, “○○○○○○,” and the Defendant is a company engaged in the business of manufacturing, wholesale, and arranging transactions of clothing.

B. On April 6, 2005, when the Defendant entrusted the sale of the goods bearing the trademark of this case to a third party from 2nd cases (hereinafter referred to as “instant trademark”), the exclusive licensee of each registered trademark listed in the separate sheet (hereinafter referred to as “instant trademark”), the Defendant obtained permission for the use of the trademark of this case by designating the items to be used as swimming clothes after obtaining the consent of 2nd cases. The Defendant, on March 30, 2006, obtained the permission for the use of the trademark of this case by adding “GYM (act including volatiles/outs/pls)” to the items to be used, while maintaining the above contents of the permission for use as above, obtained the permission for the use of the trademark of this case from June 1, 2006 to May 31, 2009 (hereinafter referred to as “the trademark of this case”), and again, obtained the permission for the use of the trademark of this case from Nonparty 2 (the representative director of Gap evidence 22, 2002 and the nonparty 3, Defendant 194.

C. The non-party 4, who is the representative director of the defendant company and the representative director of friendly unemployment, was an overseas clothes sales business from the time when the use of the two cases was permitted. The domestic clothing sales business was operated through the defendant company, respectively. The non-party 1, who worked as the director of the defendant company from January 2006 to March 2008, took overall control over the domestic business of the defendant company, and used the office of the president of the defendant company. The non-party 1 instructed the non-party 2, who was the head of the product planning division of the defendant company, to sell the trademark of this case in addition to the swimming clothes and the GYM products, other than the YM products, by attaching the trademark of this case.

D. Meanwhile, without the consent of 2006, Nonparty 1 made oral permission to sell the trademark of this case to the Plaintiff on the ground that he is the president of the Defendant Company, and in return, received a trademark use fee equivalent to 10% of the production cost of advertising goods from the Plaintiff. At that time, the Plaintiff produced and sold 50,000 bags for small travel with the trademark of this case to the East Food Co., Ltd. (hereinafter “this case’s bags”). Thereafter, the Plaintiff proposed that Nonparty 1 have the right to use the trademark of this case as a written contract, and the Plaintiff made an agreement with Nonparty 1 on January 17, 2007, specifying the oral permission for the use of the trademark of this case between Nonparty 1 and Nonparty 1 on behalf of the Plaintiff, and concluded the agreement with Nonparty 1 on behalf of the representative director on behalf of the Defendant Company on the use of the trademark of this case (hereinafter “Defendant 1”) with the following contents:

⒧ 품목: 스포츠 BAG 외 관련 제품

She brand: The trademark of this case

【Design and Production: Self-Design and Production Process

x settlement: 10% of the cost of production

(v) the production period: 2 years from the date of the instant work agreement;

E. Before and after the conclusion of the instant business agreement, the Plaintiff paid KRW 28,096,400 to Nonparty 1 and Nonparty 2, the head of the product planning division of the Defendant Company, as the royalty for the trademark of this case. On June 28, 2007, the Plaintiff entered into a contract to supply goods to supply KRW 235,000,000 of the instant household in 235,000,000 as the instant household to the company, and thereafter thereafter, began to supply the instant bank to liberia, KS Telecom Co., Ltd. (hereinafter referred to as “Scom”) and the same food company (hereinafter referred to as “identical food”).

F. However, on July 9, 2007, 2007, 2007, 2007, 20007. After warning 1, Nonparty 2, etc. to prohibit the use of the trademark of this case without permission, 2007, 200 criminal charges were filed against the Defendant as a violation of the Trademark Act (a criminal complaint was filed against the Plaintiff, but the Plaintiff was aware that he/she had the authority to permit the use of the trademark of this case and entered into the instant business agreement with the Defendant).

G. On the other hand, on June 23, 2008, the plaintiff notified the defendant of the purport that the business agreement of this case was impossible to implement and the contract of this case was cancelled because it did not have the right to permit the use of the trademark of this case. The notification reached the defendant around that time.

2. The defendant's liability for default

A. Occurrence of contractual liability under the instant business agreement

(1) As to the act of a director who has used a name which is recognized as having the authority to represent the company, the company shall be held liable to a third party acting in good faith (Article 395 of the Commercial Act).

According to the facts of recognition, the non-party 4, the representative director of the defendant company, made the non-party 1, who was a director of the defendant company, to use the office of president of the defendant company from January 2006 to March 2008, to take overall control of the defendant company's business. After that, the non-party 1 knew that he was the president of the defendant company around November 2006 and entered into the business agreement of this case between the plaintiff and the plaintiff on the use of the trademark of this case. Thus, the non-party 1's act of entering into the business agreement of this case constitutes an act of using a name that can be recognized as having authority to represent the president and other company. Thus, the defendant is liable for the plaintiff's conclusion of the business agreement

(2) On this ground, the defendant did not pay the user fee of the trademark of this case to the defendant company and paid it to the non-party 1 and the non-party 2, and did not issue a tax invoice when paying the user fee of the trademark of this case. Since the plaintiff, before and after the conclusion of the business agreement of this case, was delivered a copy of the license for use of the case from the non-exclusive licensee for the trademark of this case, the plaintiff who produced and sold advertising products by the non-party 1 and the non-party 2, was aware of the fact that the permission for use of the trademark of this case was merely the non-exclusive licensee for the trademark of this case and did not have the right to permit the use of the trademark of this case, and the plaintiff did not know it due to the non-party 1's knowledge or gross negligence that he did not have the right to represent the defendant company in connection with the conclusion of the business agreement of this case and the permission for use of

In order to establish the liability of a corporation due to the act of an apparent representative director under Article 395 of the Commercial Act, it is not necessary to do so without fault other than in good faith by a third party. However, even if the third party believed that he/she had the right to represent the company in the course of engaging in the transaction with a director who is not the representative director of the company, if there is gross negligence in trust, the company shall not be held liable to the third party (see Supreme Court Decision 2002Da65073, Sept. 26, 2003, etc.).

In full view of the purport of the argument in the evidence Nos. 22-2, 31-2, 2, 32, 34 through 41, it is recognized that the Plaintiff did not issue a tax invoice when paying trademark use fees, the Plaintiff has engaged in the business of producing and selling advertising products based on the permission for the use of various trademarks other than the trademark of this case, and the fact that Nonparty 1 and Nonparty 2 delivered a copy of the written permission for the use of 2,31-2, 32, 34 through 41 to the Plaintiff before and after the conclusion of the instant business agreement.

① However, at the time of the instant business agreement, Nonparty 1 used Nonparty 1’s position as president under the permission of the representative director of the Defendant company, and possessed the seal impression of the Defendant company. ② Nonparty 1 and Nonparty 2 were selling the instant trademark in addition to the swimming clothes listed in the license for use of the Defendant company and the GYM products, as seen earlier, as well as the relevant sports equipment, etc., including the swimming pool and the GYM products. ③ According to the evidence No. 22-2, the license for use of the Duru case is merely stated as “the extension of the contract term and all provisions other than the items to be used shall be governed by the original contract,” and it is difficult to find it difficult to view that the copy of the license for use of the Duru case would have any specific stipulation between the Defendant and the two cases. Thus, the mere fact recognized earlier does not constitute gross negligence that the Plaintiff did not know that there was no authority to represent the Defendant company in connection with the conclusion of the instant business agreement and the permission for use of the trademark.

Therefore, this part of the Defendant’s assertion is without merit (the Defendant’s assertion that, on the ground that the Plaintiff did not issue a tax invoice while paying the trademark fee, maintaining a voice transaction relationship with the employees of the Defendant Company and expanding the scale of the transaction would have caused disputes, packing as if the Plaintiff was a normal transaction, which constitutes an act of anti-social order. However, the Plaintiff cannot be said to have committed an act of anti-social order solely on the ground that the Plaintiff did not issue a tax invoice at the time of paying the trademark fee, and there is no evidence to acknowledge that the Plaintiff’s claim in this case was based on a juristic act that violates good morals and other social order).

(3) Furthermore, as long as it becomes clear that the Defendant could not continue to use the trademark of this case since that time after warning the Plaintiff of the use of the trademark of this case on July 9, 2007, and then filing a criminal complaint and civil lawsuit against the Plaintiff, it shall be deemed that the Defendant’s obligation against the Plaintiff pursuant to the instant Business Convention was impossible due to the Defendant’s fault.

Therefore, as the Plaintiff’s declaration of intent to cancel the instant business agreement on June 23, 2008, the instant business agreement was lawfully cancelled, the Defendant is obligated to reinstate the Plaintiff following the cancellation of the instant business agreement and compensate the Plaintiff for damages due to nonperformance.

B. Scope of liability

(i) Reinstatement;

The fact that the Plaintiff paid KRW 28,096,40 in total to Nonparty 1 and Nonparty 2 as usage fees for the trademark of this case before and after the conclusion of the instant business agreement is as seen earlier.

Therefore, the Defendant is obligated to refund KRW 28,096,40 to the Plaintiff the trademark fee for restitution following the cancellation of the instant business agreement.

(2) Damages due to default

In full view of the purport of the arguments stated in Gap evidence Nos. 6, 9 through 12, 23, 24, 25, 61, 66, 68, and 69, the plaintiff requested a Chinese company for the manufacture of bags to implement the supply contract for the provisional bank. Since July 1, 2007, the customs clearance of the provisional bank was suspended, and the provisional bank was not sold before that date. The plaintiff did not receive KRW 137,940,000 as it did not perform the supply contract with one of June 7, 2007. ② The plaintiff did not receive KRW 118,80,000 as it did not supply the goods for the 70th anniversary of the fact that it did not supply the goods for the 7th anniversary of the total amount of KRW 700,000,000 as it did not supply the goods for the 7th anniversary of the total amount of KRW 70,000,000 as it did not supply the goods.

As a result, the damages as seen earlier are damages arising from the Defendant’s failure to perform his/her obligations under the instant business agreement, and there is causation with the Defendant’s nonperformance. Thus, the Plaintiff incurred damages due to the Defendant’s nonperformance of obligations (i.e., KRW 137,940,00 + KRW 118,80,800 + KRW 118,80,000 + + KRW 16,841,145 + + KRW 105,000 + + KRW 61,50,000 + KRW 73,00,000 + KRW 73,5,95,94,870-18,119,38).

In addition to these damages, the defendant asserts that if the business agreement of this case is assumed to be effective, from July 1, 2007, the provisional bank of this case was manufactured and sold from January 17, 2009, the expiration date of the contract term of the business agreement of this case, and it was anticipated that the provisional bank of this case would have obtained KRW 415,123,175, which is the operating income equivalent thereto, due to the defendant's non-performance of obligation, and thus, it would be claimed that the sales of the bank of this case would continue to exist after July 1, 2007 until the expiration date of the contract term of the business agreement of this case, or that there would be such profit as claimed by the defendant. Therefore, the plaintiff's above assertion is without merit.

(3) Fruits offsetting

If any creditor was negligent in default, the court shall take such factors into consideration in determining the liability for damages and the amount thereof (Article 396 of the Civil Act).

The plaintiff is a merchant who has engaged in the business of producing and selling advertising products based on the permission for use of various trademarks including the trademark of this case, and has been engaged in the trade of using trademark rights as referred to in the business agreement of this case. However, even though at the time of entering into the business agreement of this case, the defendant company stated that the representative director of the defendant company is not non-party 1 but non-party 4, at the time of entering into the business agreement of this case, he did not confirm the circumstances (in accordance with the statement No. 5, it is recognized that the plaintiff was aware that the non-party 1 and non-party 4 are different persons at the time of entering into the business agreement of this case, and the plaintiff was delivered a copy of the permission for use of two cases from non-party 1, so the true owner of the trademark right of this case, the scope of the permission for use, and the meaning of the product scope stated in the copy of the permission for use, the defendant company can be seen to have been merely a non-exclusive licensee, but it did not reach the plaintiff's damages due to expand the plaintiff's negligence.

(4) Amount of damages after offsetting negligence

Therefore, the Defendant is obligated to compensate the Plaintiff for damages arising from nonperformance of the instant agreement (i.e., KRW 439,006,887 x 20%, and KRW 20%, hereinafter the same).

3. The defendant's liability for indemnity;

A. Facts of recognition

【Facts without any dispute, Gap 21, 58, 60, 81, 83 through 93, and the purport of whole pleadings

(1) The Plaintiff entered into a contract for goods supply of 100,000 won between 10,000 won and 235,000 won under the Plaintiff’s overall control of the Defendant’s domestic business as a director of the Defendant Company without obtaining permission of the representative director’s use of the two cases, and supplied 10,000 won of the instant case to 10,00 won to 235,000,00 won, around June 207, 2007. The Plaintiff was jointly and severally released 10,000 won of the instant case to 30,000 won of the instant case from July 1, 2007 to 30,000 won of the instant case to 10,000 won of the instant case to 20,000 won of the instant case to 30,000 won of the instant case to 10,000 won of the instant case to 20,000 won of the instant case.

(2) Without obtaining permission for use of two cases, the Plaintiff, as a director of the Defendant Company, directly controlled the Defendant’s domestic business with the representative director’s permission, and concluded 7,500 won per unit, 920 won per 7,500 won, 9,470 won per unit, 6,000 won per unit, and 3,141 won per unit, and 11,640 won per unit, and 300 won for the Plaintiff’s goods supply contract [the total value of supply, including value-added tax, 90,000,0000 won, 192,50 won, 300 won per unit, 40 won per unit, and 1,640 won for the Plaintiff’s damages claim against the Plaintiff and the Seoul District Court’s 192,809,364 won per unit, 90,000 won, 206,502,301 won for damages claim against the Plaintiff and the Seoul District Court’s 206.

(3) Without obtaining permission for the use of the two cases, the Plaintiff entered into a contract for the supply of goods with Nonparty 1, who controlled the Defendant’s domestic business with the representative director’s permission. On November 20, 2006, the Plaintiff distributed the instant bags to consumers free of charge from December 2006 to April 2007. The Plaintiff filed a lawsuit claiming damages with the Seoul Central District Court Decision 2009Ga7573, 7574, and the Plaintiff’s final appeal procedure with the Defendant’s domestic business as a result of the Defendant’s permission for the use of the trademark of this case, and the Plaintiff paid KRW 50,000 to the Plaintiff and the instant bags for compensation for damages to KRW 30,000,000,000 to KRW 30,000,000,000,000 to KRW 310,000,000,000 and KRW 310,000,000.

(b) Markets:

(1) When one of the joint tortfeasors is brought a lawsuit seeking damages from the victim and is jointly indemnified by paying the damages cited in the judgment, the amount equivalent to the percentage of the other joint tortfeasors as well as legal interest after the date of joint immunity and other accrued expenses that cannot be avoided can be claimed unless there are special circumstances such as unfair contestation. Such avoided costs and other damages shall include not only the amount paid by the joint tortfeasors but also the costs spent in the course of the lawsuit. From among the attorney's fees paid, the amount within the reasonable scope of compensation determined in consideration of the various circumstances such as the standard of remuneration under the Rules on the Calculation of Litigation Costs by the Attorney-at-Law, the rules of the affiliated association, the value of the subject matter, the difficulty of the case, the process of the lawsuit, and the result of the judgment, may be claimed as any costs and other damages that cannot be avoided, and in this case, the amount corresponding to the portion of the joint tortfeasor's liability among the attorney's fees actually paid by the joint tortfeasors can be claimed for the full amount of the other joint tortfeasor's damages.

(2) According to the facts and the facts found above, as the defendant company's principal agent in charge of the domestic business sector of the defendant company's goods bearing the trademark of this case, as the result of infringement of the trademark right by granting permission for use of the trademark of this case without authority to the plaintiff, the defendant is liable for the result of infringement of the trademark right by the non-party 1's act. The plaintiff is a merchant who engaged in the business of producing and selling advertising products based on the permission for use of various trademarks including the trademark of this case and has been engaged in the business of using the trademark of this case, but it was not confirmed even though it was stated as the representative director of the defendant company as the non-party 4 at the time of entering into the business agreement of this case, even though it was stated as the non-party 1 as the representative director of the defendant company at the time of entering into the business agreement of this case, and therefore, it was delivered a copy of the permission for use, the true owner of the trademark right of this case, the scope of permission for use, and the meaning of the goods stated in the copy of the permission for use.

(3) In addition, according to the outcome of the lawsuit, the fact that the Plaintiff paid all damages cited in the judgment to Rolus. The claim amount of Rolus case was KRW 1 billion in the first lawsuit, KRW 30 million in the second lawsuit, KRW 50 million in the third lawsuit, but due to the Plaintiff’s response lawsuit, KRW 50 million in the second lawsuit, KRW 40 million in the third lawsuit, KRW 25 million in the third lawsuit, and damages for delay were cited only, the litigation costs such as attorney’s fees, etc. were inevitable for other joint tortors. Thus, the Defendant, as joint tortfeasor, is obligated to pay the Plaintiff the costs of lawsuit, such as the damages and the attorney’s fees, cited in the judgment paid by the Plaintiff according to the internal share equivalent to the percentage of negligence.

(4) Furthermore, taking into account the following factors: (a) the share of liability between the Plaintiff and the Defendant in the internal share of liability due to the Defendant’s joint tort; (b) the negligence of the Plaintiff and the Defendant as seen earlier; and (c) the Plaintiff appears to have increased the damage by expanding the transaction relationship between the Plaintiff and the Defendant after the conclusion of the instant business agreement, the share of liability between the Plaintiff and the

(5) Therefore, the Defendant is obligated to pay to the Plaintiff KRW 43,403,170 [Article 55,318,720 + KRW 61,958,904 + 13,206,040 +41,506,848 + + 13,200,000 + KRW 31,825,341]; and

4. Plaintiff’s claim of consolation money

The plaintiff asserts that the defendant is obliged to pay consolation money of KRW 100 million to the plaintiff, since he suffered mental suffering due to the defendant's mistake and the violation of the contract with the company.

In general, consolation money, which is compensation for mental suffering, shall be deemed to have been restored by the compensation for property damage. Thus, there are special circumstances that the compensation for property damage sustained irrecoverable mental suffering, and only if the other party knew or could have known such circumstances, consolation money for mental suffering may be recognized (see Supreme Court Decision 2005Da213, Mar. 24, 2005, etc.).

In addition, there is no evidence of special circumstances that the plaintiff suffered from such mental suffering due to the defendant's default, and as long as the plaintiff's negligence more than the defendant's negligence as seen earlier, as long as the plaintiff raised a lawsuit against the plaintiff and became liable for violation of the contract with the trader, the plaintiff's claim for consolation money does not seem to be any mother, nor is it justified.

5. Conclusion

Therefore, the defendant's 159,300,947 won (=28,096,40 won for trademark use + damages caused by the defendant's default + KRW 87,801,377 won for indemnity + KRW 43,403,170 for trademark use fees and damages caused by default) and KRW 115,897,77 for the plaintiff after the date of payment of usage fees and damages caused by default. From January 1, 2008 for indemnity amounting to KRW 43,403,170 for the plaintiff from September 1, 2010, which is the last day of payment, it is reasonable to resist the existence or scope of the duty of performance from September 1, 2010 to October 13, 2010, which is the date of this decision that recognized that it is reasonable to dispute about the existence or scope of the duty of performance. Accordingly, the plaintiff's claim for damages for delay is dismissed by the judgment of the court of first instance and the remainder of this case.

[Attachment]

Judges Lee Ki-taik (Presiding Judge)