[1] In a case where the defendant was prosecuted for infringing Gap's trademark right by importing and selling figures attached with the trademark " " " identical or similar to the trademark " " which was registered by the trademark right holder Gap as the designated goods, the case holding that the two trademarks are similar trademarks because they are likely to cause mistake and confusion as to the origin of goods

[2] The case holding that the crime of violation of the Copyright Act, the violation of the Unfair Competition Prevention and Trade Secret Protection Act, and the violation of the Unfair Competition Prevention and Trade Secret Protection Act are in a mutually competitive relationship with the remaining crimes, and the violation of the Trademark Act is in a substantive concurrent relationship with the other crimes, where the crime of violation of the Copyright Act and the violation of the Unfair Competition Prevention and Trade Secret Protection Act is committed, on the ground that the defendant imported and sold the character pattern of characters expressed in the shape of the character that the defendant expressed in the shape of the author, thereby infringing the author's property right of Japanese limited liability company Gap, causing confusion with the figure sold in

[1] The case holding that in case where the defendant was prosecuted on charges of infringing Gap's trademark rights by importing and selling figures attached with the trademark " "" (hereinafter "Defendant-use trademark"), which is identical or similar to the trademark " "" (hereinafter "registered trademark"), which was registered by the trademark right holder Gap as designated goods, the case held that the two trademarks are likely to cause misconception and confusion as to the source of goods in light of the shape of blue-liters inside the shape and the size and location of French letter "leucre" is placed at the bottom, and the shape of the momocre is placed at the bottom, in light of the size and the importance of the shape of the trademark in the whole, etc.

[2] The case holding that the violation of the Copyright Act and the Unfair Competition Prevention Act are in a commercial competition relationship under Article 40 of the Criminal Act, and the crime of violation of the Trademark Act is in a commercial competition relationship under the former part of Article 37 of the Criminal Act, where one act constitutes several crimes, and the crime of violation of the Trademark Act is in a substantive competition relationship under the former part of Article 37 of the Criminal Act on the grounds that the remaining crimes and the act of violation of the Trademark Act are different from the other crimes.

[1] Article 93 of the Trademark Act / [2] Articles 37 and 40 of the Criminal Act, Articles 3(3) and 136(1)1 of the Copyright Act, Article 2 subparag. 1(a) and Article 18(3)1 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 2013); Article 93 of the Trademark Act

Defendant

Defendant

Law Firm Barun et al.

Daegu District Court Decision 2014No816 decided July 10, 2015

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the violation of the Copyright Act

A. Creativeity is required as a requirement for a work to be protected under the Copyright Act, but creativity in this context is not a complete originality, and merely means that a work does not simply imitate another’s work, but includes an original idea or expression of an author’s own idea or appraisal. To satisfy these requirements, it is sufficient that the work is given characteristics as a litigation for mental efforts according to the author’s own name and that it is sufficient to distinguish it from the existing work of another author (see, e.g., Supreme Court Decisions 2002Do446, Oct. 23, 2003; 2012Da76829, Dec. 11, 2014).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the character of this case is expressed in the shape of a person, and the character of this case is in the shape of a large body of dunes and small body of dunes and dunes around the dunes, which is compared with the small body of dunes and small body of dunes, and you can see that dunes and dunes are in the shape of a dunes, which can be seen as identical to dunes, and dunes and dunes are in the shape of a dunes. Since the body and dunes are in the shape of a dunes, they are in the original form of a dunes, and as a whole, they are dunesed to dunes and dunes.

Meanwhile, around 2004, the character of this case was used in the form of only the character of this case, such as where the character was written in the form not attached to the goods in the dynamics published in Japan around 2008, as a design developed by the kind of original character, which was used in the goods prior to being expressed in the mass media, such as cartoons and movies, in Japan (hereinafter “the character of this case”). Thus, it is sufficient to determine whether the character of this case was creative as a requirement for the work protected under the Copyright Act, depending on whether the design of this case itself satisfies the creativity (see Supreme Court Decision 2012Da76829, Dec. 11, 2014).

However, the character of this case is a unique form that is distinguishable from the actual shape of the author's own mental effort, and is deemed to be a degree that can be distinguished from the previous works of other authors, so the character of this case is creative as a requirement for the work protected under the Copyright Act. Therefore, the act of the defendant, as a simple three-dimensional shape of the character of this case as at the time of original adjudication, importing and selling in Korea the reproduction or the shape of the copy of the derivative work without permission constitutes infringement on the author's property right of the character of this case.

The Defendant’s assertion disputing the time of the creation of the character of this case or its three-dimensional shape is not acceptable as it argues that the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, are erroneous.

B. The Defendant asserts to the effect that the character of this case or the shape of a trademark is an applied art and not protected as a work in Japan, which is its home country, and that, in principle, if the applied art is protected only as a design or model, it shall not be protected in the other Contracting States, as a matter of principle, in the context of other Contracting States, Article 2(7) of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter “Berne Convention”) or Article 3(3) of the Copyright Act, which provides that foreigners’ works protected under the treaties or the provisions of the Copyright Act, may not be protected under the treaties or the Copyright Act, if the foreigner’s works are not protected by the Republic of Korea in a foreign country, the protection under the treaties or the Copyright Act, which provides for the so-called reciprocity, may be limited accordingly if the foreigner’s works are not protected by the nationals of the Republic of Korea. However, as seen earlier, the provisions of the Berne Convention can be construed to exclude this principle from the provisions of the Berne Convention as the Japanese Copyright Act.

Therefore, the defendant's argument on this issue cannot be accepted without the need for further review.

C. Although the judgment of the court below is somewhat inappropriate, the conclusion that the defendant's copyright infringement is established by recognizing the creativity of the character of this case is justifiable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the creativity, etc. of the character of this case, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. As to the ground of appeal on the violation of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

In light of the relevant legal principles and reasoning of the judgment below and the evidence duly admitted by the court below, the time of creation of the character of this case, the import, manufacture, and sales of the character of this case in Korea, and the sales status of the character of this case and the extent known in the press media, etc., it is just for the court below to determine that the character of this case and its three-dimensional shape constitute a mark indicating that the character of this case is another person's goods widely known in Korea. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the character or well-knownness of the character of this case, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by omitting all necessary deliberations or failing to exhaust all necessary deliberations.

3. As to the ground of appeal on violation of the Trademark Act

A. (1) An act of using a trademark identical or similar to another’s registered trademark on goods identical or similar to the designated goods constitutes an infringement on the relevant trademark right. Determination as to whether an act of using a similar trademark constitutes an act of using the said trademark ought to be made from the perspective of whether traders or ordinary consumers, who use the two trademarks differently from the time and place, are likely to mislead or confuse the origin of goods, when comprehensively taking into account the impression, memory, association, etc. offered to traders or ordinary consumers by means of their appearance, name, concept, etc. based on the transaction circumstances regarding the relevant goods (see Supreme Court Decision 2014Da216522, Oct. 15, 2015).

(2) We examine the above legal principles and the evidence duly admitted by the court below.

A person shall be appointed.

(A) At the time of the original adjudication, the registered trademark of this case, like the right, is in the shape of the Cheong-gro, and the shape of the Cheong-gro is placed at the bottom of the trademark, and in light of the size, location, and the proportion of the shape of the French language to the entire mark, etc., the shape of the mogrobs can be seen as a characteristic part which attracts consumer attention. Although the mobs diagrams shown on the right side trademark of the attached Table 2 of the judgment of the court below (hereinafter “Defendant Defendant Defendant’s trademark 1”), the body and the shape of the mobs are in fact identical to the mobs of the instant registered trademark, the shape of the mobs in fact are in the same shape as the mobs of the instant trademark of this case. Although the overall shape shown in the background does not exist in the trademark of this case, it is difficult to see that the shape and the shape of the mobs, etc., compared with the shape of the yellow color and the shape of the instant trademark of this case.

(B) Of the letter parts of the instant registered trademark, “le Sucre” and the letter parts of Defendant’s trademark 1, “sucred” include “Sucre” as a part of the letter, even if they are not identical in terms of fonts, sound, etc. as a whole, even if they are not identical in terms of fonts, sound, etc.

(C) The registered trademark of this case and the products using the Defendant’s trademark 1 are identical or similar to both the shape of the shape of the mold.

(D) The Defendant’s trademark 1 is connected in the form of a house (tag) on the shape of mos imported and sold by the Defendant. The customer wishing to have the goods confirmed and purchased the goods on the basis of the trademark affixed to mos.

(E) In full view of the origin of the mark between the instant registered trademark and the Defendant’s trademark 1 and the trade situation of goods using the said trademark, both trademarks are likely to cause mistake and confusion as to the origin of goods in terms of the impression, memory, and chain that they are placed on traders or ordinary consumers.

(F) Although the reasoning of the lower court’s reasoning on this part is somewhat inappropriate, the conclusion that both trademarks are similar is justifiable. In so doing, it did not err by misapprehending the legal doctrine on infringement of trademark rights, or by exceeding the bounds of the principle of free evaluation of evidence in violation

A person shall be appointed.

B. The Defendant’s assertion that the Defendant did not use the Defendant’s left-hand trademark in attached Form 2 (hereinafter “Defendant-Use Trademark 2”) from October 2012 to October 2012, which was composed of the right-hand trademarks from around the registration date of the instant registered trademark, is inconsistent with the purport of denying the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction.

C. Meanwhile, the Defendant alleged to the effect that the registered trademark of this case would be invalidated and thus it cannot be subject to criminal punishment on the ground of its infringement. However, there is no evidence to prove that the registered trademark of this case would be invalidated of registration. Rather, according to the records, the Defendant’s assertion as to this case’s registered trademark cannot be accepted, since a trial decision that the registered trademark of this case would not be invalidated of registration on the ground that the registered trademark of this case is not similar to that of “” (trademark number omitted) is confirmed in the procedure for invalidation trial of registration of the registered trademark of this case, such as where the registered trademark of this case would be considered as “Macco type and Masing type,” and it is not similar to “” (see Supreme Court Decision 2013Ma576, Apr. 15, 2014)

4. As to the ground of appeal regarding the number of crimes

The facts of each crime at the time of original adjudication constitute a violation of the Copyright Act to the effect that "the defendant imported and sold a 83,950 figure of the character character of this case, which is the copyrighted work of the Japanese non-indicted 2 limited liability company from November 24, 2010 to April 18, 2013, and infringed on author's property right"; and the part of the Unfair Competition Prevention Act to the effect that "the defendant imported a 83,950 figure as above and sold in Korea, which is a product label widely known in Korea, and caused confusion with the figures of the character character of this case," and "the defendant violated the Trademark Act to the effect that the defendant's act constitutes a violation of Article 17 of the Trademark Act to the effect that the trademark of this case is identical or similar to the trademark of this case and constitutes a violation of the remaining trademark rights under the former part of Article 10 of the Trademark Act."

Although the lower court erred in determining that the crime of violating the Copyright Act and the crime of violating the Unfair Competition Prevention Act are in a substantive competition relationship under the former part of Article 37 of the Criminal Act, even if the lower court erred by misapprehending the scope of punishment, and thus, it cannot be deemed that such errors by the lower court affected the conclusion of the judgment (see, e.g., Supreme Court Decisions 2002Do7335, Feb. 28, 2003; 201Do8649, Oct. 31, 2013).

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)