Defendant 1 and one other

Prosecutor

United Kingdom of America

Attorney Kang Dong-chul

Seoul District Court Decision 2002Gohap5843 Delivered on February 5, 2003

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

Although a trademark of a victim’s trademark is composed of two words, it is actually called “cloba” as a abbreviation, and the Defendants’ act constitutes a violation of the Unfair Competition Prevention and Trade Secret Protection Act, it is unlawful for the court below to render a judgment of innocence against the Defendants, even if the Defendants’ act constitutes a violation of the Unfair Competition Prevention and Trade Secret Protection Act even if it is clearly recognized that the trademarks used by the Defendants would cause confusion with the source of their products.

2. Determination

On the other hand, Article 2 subparagraph 1 of the Unfair Competition Prevention and Trade Secret Protection Act provides that "the act of causing confusion with another person's goods by using any goods identical or similar to another person's name, trade name, trademark, container or package of goods, or any goods bearing such goods, which are widely known in the Republic of Korea, or by selling, distributing, importing, or exporting goods using another person's goods," and thus, the defendants' act constitutes an unfair competition act under Article 2 subparagraph 1 of the above Act, first, the injured person's trademark shall be widely known, second, the defendants' trademark shall be identical or similar to the injured person's trademark, and third, the general consumers or traders shall be likely to cause confusion or confusion between the two goods marks.

However, the similarity of trademarks in relation to the above requirements should be determined by whether there is a concern for misconceptions or confusions as to the origin of goods in trade, on the basis of the direct perception that ordinary consumers or traders feel about the trademark by observing the appearance, name, and concept of the two trademarks used for the same goods in an objective, overall, and separately from the appearance of the two trademarks (see Supreme Court Decision 9Hu1096, Apr. 25, 2000). Thus, the "cambak bus" as the registered trademark of the victim and the "hambambak" as the trademark used by the defendants are different not only from the appearance or name of the two trademarks, but also from the meaning or guidance of the above two trademarks. Thus, the above two trademarks are not identical or similar.

In addition, the trademark of the victim of domestic affairs refers to "camba" as the abbreviation of "camba" actually. Even though the essential part of "camba" is "camba" as the part of "camba", the trademark used by the defendants is combined with the word "camba" as the trademark used by the defendants, and with the word "camba" as a conspicuous geographical name, thereby creating a new concept of "camba" as the trademark of the defendant. Thus, it is inappropriate to separately observe and observe the "cambaba" as well as the above trademark is likely to be abbreviationd only with "camba" in actual circumstances. Accordingly, it cannot be seen as identical or similar to the "camba" as the abbreviation of "camba" and "cambabababbba" as the trademark of the "cambabbba" and its appearance, name, and concept.

Therefore, without examining the remaining issues, the prosecutor's assertion that the defendants' act constitutes an unfair competition act under Article 2 subparagraph 1 of the Unfair Competition Prevention and Trade Secret Protection Act is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges intentionally (Presiding Judge) a white light