1. The term "legal person" means a person who is a legal person or a legal person, or a legal person who is a legal person or a legal person.

Hanmi Pharmaceutical Co., Ltd. (Attorney Full-time et al., Counsel for the plaintiff-appellant)

August 27, 2013

Seoul Central District Court Decision 2012Gahap87022 Decided March 29, 2013

1. Revocation of the first instance judgment.

2. The defendant,

(a) shall not manufacture, transfer, lend, import, or subscribe for transfer or lease (including display for transfer or lease) each product listed in Schedule 1(1);

(b) not transfer or deliver, or exhibit or import or export or import for such purposes, the marks listed in paragraph 2 of the Schedule 1 on the products listed in paragraph 3 of the same Schedule or on their packaging and advertising advertisements;

C. All finished products and semi-finished products listed in Attachment 1 List 1, which are kept in the defendant's office, factory, warehouse, or place of business, or possessed by the defendant through a third party are discarded.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

It is as set out in paragraphs 1 and 2 of this Decree.

1. Facts of recognition;

○○, Plaintiff C-Woo-Woo is a corporation in the United States of America, the main purpose of which is to develop and sell a number of drugs, including Abagra (Viagra; hereinafter “Bagra”), which is a treatment product for cardio-functional disorder. The mark indicated in the attached Table 2, which combines the drugs for cardio-cerebral disorder treatment into three-dimensional shapes as designated goods, shall be filed on November 6, 2003 and completed registration on February 17, 2005 (registration number omitted, (three-dimensional trademark, color trademark; hereinafter “Plaintiff registered trademark”).

○○ Korea-U.S. Co., Ltd. (hereinafter “Plaintiff-Korea-U.S.-Korea-U.S.-Korea-U.S.-Korea-U.S.-Korea-U.S.-C.) is a subsidiary company located in the Republic of Korea of Plaintiff C-U.S., and exclusively imports and sells drugs produced by Plaintiff C-U.S. and

○ The Defendant, as indicated in attached Table 1 List No. 1, produces, sells, and advertises “50 milligrams of arms and arms” (hereinafter “Defendant 1”) and “100 milligrams of arms and arms” (hereinafter “Defendant 2”) as indicated in attached Table 1 List No. 1 (hereinafter “Defendant 1”) on May 18, 2012.

[Ground of recognition] The fact that there is no dispute, Gap's Nos. 4-7, 28, Eul's No. 1, 2, and 15 (including the number of each issue; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiffs' assertion

A. Infringement of trademark right

The Defendant’s act of producing, selling, advertising, etc. the Defendant’s products similar to the Plaintiff’s registered trademark and the overall appearance constitutes infringement on the Plaintiff’s registered trademark right of prodz.

(b) Unfair competitive acts;

The forms of the plaintiffs' "Non-Agra product form" (hereinafter "the plaintiff's product form") are widely known and well-known goods that themselves indicate the plaintiffs' product form. The defendant produces and sells the defendant's product that imitates the appearance as it is in order to take advantage of the reputation of the " non-Agra product" product. The defendant's act at least is likely to cause misconception and confusion about the source by ordinary consumers who contact the product after purchasing the product. Thus, it is not only an act of confusion between the product owner as defined in subparagraph 1 (a) of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") but also an act of weakening the unique distinctive mark with the plaintiff's product form, and constitutes an unfair competition act as defined in subparagraph 1 (c) of Article 2 of the Unfair Competition Prevention

C. Illegal acts under the Civil Act

The Defendant and the Plaintiffs are in a competitive relationship, and the form of the Plaintiff’s product and the image and distinctive character thereof are the outcome of building up with the Plaintiffs’ considerable effort and investment. The Defendant, for its own business, uses it without permission, thereby gaining unfair profits by taking advantage of the competitor’s efforts and investment. Such an act by the Defendant constitutes a tort under the Civil Act, which infringes on the Plaintiffs’ interests worthy of legal protection.

(E) The plaintiffs' arguments are deemed to have been sought as a selective basis in light of their purport.

3. Determination as to the Plaintiff’s claim against the Plaintiff and the professional ethics.

A. Whether trademark rights have been infringed - Recognition

1) Consumed legal principles

If a mark identical or similar to another person’s registered trademark is used for goods identical or similar to the designated goods of the registered trademark, such act constitutes an infringement of another person’s trademark right (see Article 66(1) and (2) of the Trademark Act). Whether a trademark similarity is determined by objectively and comprehensively observing the compared trademark in terms of appearance, name, and concept in a three-dimensional manner and determining whether there is a possibility of misconception or confusion as to the origin of goods. In particular, since the shape of the figure trademark remains a dominant increase, if the appearance of the trademark is identical or similar and used for the same product as the multiple trademarks, if there is a concern that ordinary consumers mistake or confusion as to the origin of goods, the two trademarks are similar (see, e.g., Supreme Court Decision 98Do2743, Dec. 26, 2000). In addition, the determination of similarity of trademarks should not be compared with two trademarks per se, but may cause misconception or confusion as to the origin of goods by traders or ordinary consumers at the same time and place (see, e.g., Supreme Court Decision 2015Da1414, etc.

Meanwhile, even if a mark identical or similar to another person’s registered trademark is used, if it cannot be perceived as the use of a trademark because it does not aim at indicating the origin of goods, it shall not be deemed infringement of another person’s trademark right. In such cases, whether the mark is used as a trademark ought to be determined on the basis of whether the mark is actually used as a mark indicating the origin of goods, taking into account the aspects of the use of the mark, such as the relation between the mark and goods, the location or size indicated on the goods, etc., the registered trademark’s well-known and well-knownness, and the user’s intent of use, and the process of use, etc. (see, e.g., Supreme Court Decision 201Do1341, Feb. 14, 2013).

2) Whether the external appearance of the trademark is similar

The Plaintiff’s registered trademark is a combination of colors with three-dimensional shapes, and its external appearance remains dominant. Thus, in light of the aforementioned legal principles, if the appearance of the Plaintiff’s registered trademark and the Defendant’s products is identical or similar to that of the two identical or similar trademarks and if it is likely that ordinary consumers mistake or confuse the origin of the product would cause mistake or confusion as to the origin of the product, the two trademarks should be deemed similar.

The Plaintiff’s registered trademark and the Defendant’s products both ① are the shapes of the Malomond figure or a multilomond figure as a whole; ② are the shapes of the Malomond figure with rhythrhyth, ③ are about 1.35 degrees, ④ are the shapes of an excursion ship composed of the part in the form of the pole and the part in the shape of the said pole, and ④ are the shapes of an excursion ship with the same color as that of the Malomon,

다만 원고 등록상표의 경우 마름모 도형의 각 모서리가 완전한 호(원의 일부분) 모양으로 다듬어진 형태지만, 피고 제품들은 마름모 도형의 좌·우 모서리를 장축에 수직 방향으로 잘라낸 후 각 모서리가 다시 둥글게 다듬어진 육각형에 유사한 형태이고, ② 원고 등록상표의 경우 기둥 형태의 부분(Band)의 길이와 상대적으로 위·아래로 튀어나온 부분(Cup)의 길이 차이가 크지 아니하여 옆에서 볼 때 전체적으로 긴 타원형이나, 피고 제품들은 기둥 형태의 부분(Band)의 길이가 위·아래로 튀어나온 부분(Cup)보다 훨씬 길어서 옆에서 볼 때 전체적으로 위·아래로 살짝 부풀어 오른 사각형에 가까운 차이가 있으며, 특히 피고 제품 2의 경우에는 가운데 부분에 움푹 팬 직선의 홈이 있다(이는 알약을 1회 복용량에 맞추어 2개로 자르기 위한 것으로 보인다).

In light of the shape and color of both the Plaintiff’s registered trademark and the Defendant’s products are related to the known drug, and based on the ground plan and the sacity, which is the most well-known part of the person’s eye at the time of use as an known drug, the dominant feature of the shape of a sae-maro pattern or a fromond pattern figure is identical. On the other hand, the difference in the shape of the sagle type prior to the foregoing is not easily visible in light of the size of the known drug, the degree of about 1cm and the size of the sagle, etc., and such a difference in time and location is more similar. Therefore, the exterior of the Plaintiff’s registered trademark and the Defendant’s products are similar

3) Whether the defendant's trademark is used

A) In full view of the following circumstances in light of the legal principles as seen earlier, the Defendant’s shape and color used for the purpose of indicating the origin of the goods, comprehensively taking into account the relationship between the mark and the goods, the mode of using the mark, the well-known and well-knownness of the registered trademark, the intent of the user, and the process of

【Basic Data for Determination】

○ Relation between Marks and Goods

A well-known figure or a multimond pattern is a shape that has been widely used prior to the towing times, and a flexible blue or stale color is also a color that has already been used for Alban. However, there is no evidence to acknowledge the existence of a well-known malgomond pattern, which combines the shape of a yellow or multimond figure and the color of a yellow color series, even before the release of the plaintiffs’ “Non-Avian Products.” Therefore, the Plaintiff’s registered trademark is recognized to have the characteristic that combines the shape and color in the designated goods by itself.

○ The mode of use of the mark

As seen earlier, the shape and color of the Plaintiff’s registered trademark and the Defendant’s products are considerably similar, and the goods using the mark are also identical to the known trademark.

The Defendant’s products are as prescription drugs and are packaged two times in the outer packaging and inner packaging. On the front and back of the outer packaging, “PalPTb”, “sale”, and “Korea-U.S. medicine” are printed repeatedly on the back of the inner package. The final consumer purchases the Defendant’s products at a pharmacy with a doctor’s prescription, and if they are purchased in the outer package, the product can be identified with the name of the Defendant’s products entered in the outer package and the trademark referring to the Defendant. However, considering the characteristics of food and medicine, the shape and color of the Alb, which finally removed the consumer’s packaging, should also be checked.

In addition, as the amount and volume of the Defendant’s products are differently prescribed according to the patient’s quantity and volume, there is room for transaction in the inner packaging condition or piece. In other words, the Defendant’s products are prescribed 7.7 minutes at average when prescribing the treatment product for pre-donations, such as the Defendant’s products. As the Defendant’s products are sold by combining 4, 8, 12, 24, and 30 items, it may be sold in the inner packaging if the prescribed quantity and number per package are not consistent. The Defendant’s inner packaging includes the name of the Defendant’s products on the back, but the front packaging is a transparent material, so the Defendant’s products’ form and color can be easily checked from their packaging condition. Although the Defendant’s products are interested in the media due to the unique nature of medicines for pre-donations, the Defendant’s products are required for prescription, it is also found that the Defendant’s products themselves are opened in the form and color of the Defendant’s products without prescriptions among ordinary consumers.

○ well-known and well-knownness of the trademark

The term “Non-Agra” was developed at the end of March 27, 1998 by Plaintiff C, Co., Ltd., and began to be sold at a pharmacy only to a person who received a doctor’s prescription from the U.S. pharmacy on April 7, 1998 after obtaining approval for the sale of food in the United States from the U.S., and began to be sold at the pharmacy. Unlike the existing chemical disability treatment systems, it was known that the efficacy is more outstanding than other chemical disability treatment systems and its side effects are low. As such, the world's attention was given prior to the commencement of the sale, and upon the commencement of the sale, it was led to a scarcity globally.

In Korea, the term “Non-Agra” used the term “non-Agra” as well as the term “non-Agra” used in the term of “non-Agra” used in the term of “non-Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Agra” used in the term of “Vagra” and “Agra” used in the term of products produced by the above Plaintiff.

On the other hand, ① Products using the Plaintiff’s registered trademark (“Plaintiffs”) are continuously sold in Korea for about 15 years from around 199 to around 15 years without changing the form of the Plaintiff’s products. ② The cumulative sales of the Plaintiffs’ products are approximately 421 billion, and 420,000 were sold until March 201, and the cumulative sales volume of the Plaintiff’s products were approximately 360,000,000. The Plaintiff’s products were 5% of the Plaintiff’s registered trademark products, and the Plaintiff’s products were inserted as “the Plaintiff’s products were inserted as “the Plaintiff’s products” and the Plaintiff’s products were inserted as “the Plaintiff’s products were inserted as “the Plaintiff’s products,” and the Plaintiff’s products were inserted as “the Plaintiff’s products were inserted as “the Plaintiff’s products,” and the Plaintiff’s products were inserted as “the Plaintiff’s products,” and the Plaintiff’s products were inserted as “the Plaintiff’s products were reproduced in Korea using the Plaintiff’s pictures.”

As can be seen, the Plaintiff’s registered trademark, the form of the product, is also deemed to have been acquired independently from the time the application was filed, by focusing on the degree of pressure, reputation, and reputation of the product mark.

○ employer’s intent and details of use

In light of the fact that the Defendant released the Defendant’s products, a medicine for reproduction of the Plaintiff’s products whose patent term expires. Although it was possible for the Defendant to select any shapes and colors different from the Plaintiff’s registered trademark on the Defendant’s products, the Defendant used the same shapes and colors as those similar to the Plaintiff’s registered trademark, and that a person who used a specific drug for a long time could have caused the early rejection of the Plaintiff’s product with respect to the entirely different shapes and colors from the previous medicine that had been used in the shape and color that were completely different from the previous medicine, the Defendant may be presumed to have an intention to take advantage of the quality assurance function, including the Plaintiff’s product’s product’s efficacy and stability, by withdrawing the Defendant’s products similar to the Plaintiff’s registered trademark, including the Plaintiff’s product’s product’s product’s consumer trust.

[Judgment of the court below] Evidence Nos. 8-27, 31, 33, 35-46, 51, 52, 57-58, 73-78, 81-85, Eul evidence Nos. 50 and 51

[Judgment]

Examining the above circumstances in light of the legal principles as seen earlier, the Defendant is deemed to have used the shape and color of the Defendant’s product as a trademark to indicate the origin of the product. As long as such form and color functioned as a mark of the origin of the product, they cannot be deemed to have been used only as a design.

B) However, according to the evidence adopted above, the specific contents of drugs in the “comforcing” under Article 18(2) of the Medical Service Act, and Article 12(1)5 of the Enforcement Rule of the Medical Service Act are established by the “title” of medicines prescribed. As seen earlier, the outer packaging and inner packaging of the Defendant’s products are distributed in the printed form, and the name of the Defendant’s products or a trademark referring to the Defendant is distributed in the printed form; the Defendant’s products themselves are “HM 50” or “HM 100” indicating the Defendant’s abbreviation and capacity.

However, since the mark such as a three-dimensional or color is ordinarily used for goods along with letters and marks such as the name of goods in the context of trade, its distinctiveness cannot be uniformly denied solely on the ground that letters and marks are attached to a three-dimensional trademark and a color trademark, etc. In such a case, the determination of whether a three-dimensional or color is independent distinctive character of the three-dimensional and color should be made depending on the appearance, size, location, and the degree of well-known and well-knownness attached to the three-dimensional trademark.

In this case, as recognized earlier, the name of the defendant's product is merely marked in packages, etc. other than the defendant's product itself, and the defendant's product itself, the size of which is about 1cm with the defendant's abbreviations itself, is marked in a negative manner that is not well visible. On the other hand, in light of the fact that the shapes close to the color of a mixer or Damonmond, which is similar to the plaintiff's registered trademark, are in a very easily visible manner in observation, it is acceptable to accept the above survey method of the plaintiff's registered trademark form excluding the letter mark. On the other hand, the defendant's survey method (No. 44) conducted by the defendant is that the respondent made the plaintiff's product and the defendant's product prepare for the actual product packaging, etc., or that the defendant's product itself, which is the size of about 1cm with the defendant's trademark itself, is to use the plaintiff's trademark's independent distinctive character obtained through combination of the three-dimensional type and color, and thus, the defendant's product's product origin and its origin are used in packaging.

4) Sub-committee

As such, the shape and color of the Plaintiff’s registered trademark and the Defendant’s products are similar to their appearance, and both are likely to cause confusion and confusion among ordinary consumers as to the origin of the goods if used for cardio-cerebrovascular drugs or mal functional disorders treatment medicines, which are designated goods of the Plaintiff’s registered trademark, (the same shall apply as seen earlier), and the Defendant’s production, sale, advertisement, etc. of the Defendant’s products using their shape and color as above constitutes infringement of the Plaintiff’s registered trademark right.

However, even if the two trademarks are similar in general, abstract, and shape to each other in terms of the appearance, name, and concept of the trademark itself, even if there is a similar part in the general transaction situation surrounding the pertinent goods, i.e., consumer's re- or knowledge, degree of attention, expert, age, sex, place of transaction, post management, whether the relevant goods are in good condition and method of transaction, trademark's present and use, degree of well-knownness and relation to the relevant goods, consumers' daily language life, etc., the infringement of trademark rights may be denied on the following grounds: (a) there is little possibility that consumers can be separated from the similar parts only in comprehensive and overall aspects, or consumers can not be easily mistaken or confused with the origin of the goods in the trading society (see Supreme Court Decisions 2010Da20778, Dec. 27, 2011; 95Hu1821, Jul. 30, 1996; and (b) there is no possibility that consumers' goods or signs can be easily determined on the product's.

In particular, even if the plaintiffs' products and the defendant's products are medical supplies sold at a pharmacy only to those who have received a prescription, the defendant's products are not limited to and limited to, medication, and distribution under strict control, such as psychotropic drugs, but are prescribed, administered, and distributed in a relatively wide range (in this regard, the case differs from the Supreme Court Order 94Ma33 Decided May 9, 1994, which is the case concerning psychotropic drugs), and as seen above, they are prescribed in the inner package that can recognize the product form as mentioned above, and there are special circumstances where it is difficult to completely eliminate the possibility of misconception and confusion in the process of purchasing drugs by visiting a pharmacy after the issuance of a prescription. Thus, considering that the awareness of the product by potential consumers or end-consumers cannot be seen as entirely and individually, it is difficult to view that the product constitutes a case where there is no possibility of misconception or confusion among consumers as to the source of the product.

Therefore, pursuant to Article 65(1) and Article 65(2) of the Trademark Act, Plaintiff Cratts and professional ethics may request the Defendant to take necessary measures, such as prohibiting and preventing such infringement and destroying articles that caused such infringement.

B. Judgment on the defendant's assertion - rejection

1) The purport of the Defendant’s assertion (including the assertion in each supplementary document as of September 30, 2013 and October 14, 2013, submitted after the closing of argument in the trial room)

A) The Plaintiff’s registered trademark is a trademark consisting solely of a trademark indicating in a common way the shape of an known drug, which is the designated goods, and even if a known drug in the form of “spawhmond shape” is the first time, it does not create a new distinctive character. Moreover, the Plaintiff’s registered trademark is a trademark consisting solely of a simple and ordinary mark, and it does not form a new distinctive character by combining a mark actually used or used by many people, and it does not constitute a trademark having no distinctive character.

Therefore, the plaintiff's registered trademark should be invalidated because it is registered in violation of Article 6 (1) 3, 6, and 7 of the Trademark Act. Thus, the plaintiff's assertion of trademark infringement based on the plaintiff's registered trademark constitutes an abuse of rights.

B) In order to claim the distinctiveness of the Plaintiff’s registered trademark through the use under Article 6(2) of the Trademark Act, the Plaintiff’s registered trademark shall submit data proving the use of the trademark from the time of filing an application for trademark registration pursuant to Article 36(4) of the Enforcement Decree of the Trademark Act and Article 14 of the Trademark Examination Standard to clarify that it is an application for trademark registration pursuant to Article 6(2) of the Trademark Act. However, the Plaintiff’s registered trademark is not an application for trademark registration based on the premise that the trademark is not applied. Moreover, distinguishability through use is recognized only for the trademark identical to the trademark actually used. The Plaintiffs’ products, such as “pflizer”, constitute a part of the shape because the letters, such as “pflizer,” are collectively

Even if the Plaintiff’s registered trademark is a trademark with distinctiveness by use under Article 6(2) of the Trademark Act, it is a trademark consisting solely of three-dimensional shapes and colors essential to secure the function of goods or packaging of the goods. Thus, it should be viewed as an invalid trademark that cannot be registered under Article 7(1)13 of the Trademark Act.

C) In addition, the shape of the Defendant’s product is indicated in a common way as to the ordinary shape and color of Alban, and it is a three-dimensional trademark with no distinctive character, and it is an essential form, color, and shape that is essential to secure the function of Alban, so the effect of the Plaintiff’s registered trademark under Articles 51(1)2, 2-2, and 4 of the Trademark Act does not extend to the Defendant’s product.

2) Determination

A) Whether it constitutes abuse of rights

(1) Even before a final and conclusive decision on the invalidation of a registered trademark becomes final and conclusive, if it is apparent that the trademark registration will be invalidated by an invalidation trial, a request for prohibition of infringement based on the trademark right constitutes abuse of rights, barring any special circumstance. In a case where there is a defense that the trademark right holder’s request constitutes an abuse of rights, the court in charge of a trademark infringement lawsuit may deliberate and decide on whether the trademark registration is invalidated on the premise of examining whether the trademark right holder’s request constitutes an abuse of rights (see Supreme Court en banc Decision 2010Da10300, Oct. 18, 2012).

The grounds for excluding “trademark consisting solely of a mark indicating the shape, etc. of a product in a common way” under Article 6(1)3 of the Patent Act are as follows: (a) the shape of the product is merely the original form of the product, such as the intent to effectively display or debris the original function of the product, and to encourage consumers’ desire to purchase; and (b) it is intended to limit the distinctiveness of a three-dimensional trademark, taking into account that it does not aim at distinguishing the function of the product (see Article 8 of the Trademark Examination Criteria, No. 66 of the Rules of the Korean Intellectual Property Office). Even if the product has a function of distinguishing the product, the shape needs to be used by anyone in the process of distributing the product, and thus it is intended to use it exclusively to a specific person (see Supreme Court Decision 2002Hu140, Aug. 16, 2004). Article 7(1)13 of the Trademark Act provides that trademark registration can not be obtained with respect to the product color or packing of the product.

Whether a trademark constitutes “a trademark consisting solely of a mark indicating the shape, etc. of goods in a common way” under Article 6(1)3 of the Trademark Act shall be objectively determined by taking into account the concept possessing the trademark, the relationship with the designated goods, the circumstances of the trade society, etc. (see, e.g., Supreme Court Decision 2002Hu1140, etc.). As seen earlier in the instant case, a mark combining the colors and shapes of Pakistan, which are the Plaintiff’s registered trademark, cannot be deemed as a general form of aware, which is the designated goods. It is difficult to view that the combination of the above shape and colors, is made with the intention of promoting consumers’ desire to purchase by effectively displaying the known function or by causing a sense of beauty only. Considering such circumstances, it is difficult to readily conclude that a variety of shapes, shapes, colors exists and many alternative shapes exist, and thus, ordinary consumers or traders do not constitute a trademark that falls under Article 17(1)3 of the Trademark Act or 17(1)6(3) of the Trademark Act.

Article 6(1)6 of the Trademark Act is different from the trademark consisting solely of a simple and ordinary mark, since the Plaintiff’s registered trademark is a combination of the color of the yellow line and a multimond pattern. Thus, the trademark cannot be deemed as a trademark consisting solely of a simple and ordinary mark under Article 6(1)6 of the Trademark Act. As a combination of the color of the yellow line and the shape of the multimond pattern, the trademark appears to have a new concept or distinctive character that could not have been thought in the previous case, and thus, it cannot be readily concluded that the trademark constitutes a non-distinctive mark under Article 6(1)7 of the Trademark Act.

• Even if the Plaintiff’s registered trademark falls under a trademark with no original distinctiveness, considering the following as a result of the survey: (a) the use period and use form of the Plaintiff’s registered trademark; (b) continuous advertising activities; (c) frequency of exposure through media reports; (d) the sale quantity of the Plaintiffs’ products; and (e) the identity of the Plaintiff’s registered trademark in the category of products such as designated goods; and (b) consumer awareness, the Plaintiff’s “Viagra” and “non-agra” appears to have been considerably widely known and well-known in the form of the product; and (c) the Plaintiff’s registered trademark is deemed to have been considerably transferred to the Plaintiff’s registered trademark, which is the form of the product. In light of the fact that the trademark is used in a specific product for a long time prior to the application for trademark registration, it is sufficient to deem that the trademark satisfies

In this case, as seen earlier, the acquisition of distinctiveness cannot be denied solely on the ground that a letter mark is used together with the Plaintiff’s registered trademark, and in light of the appearance, size, location, and degree of well-known and well-knownness, etc. of letters, etc. attached to a three-dimensional shape or color, it is necessary to separately determine whether to acquire the Plaintiff’s independent distinctive character only with the Plaintiff’s registered trademark in light of the following factors: (a) the characteristics of the Plaintiff’s registered trademark and the letter mark attached to the transaction practice are indicated and used together with the Plaintiff’s registered trademark; and (b) in light of the ordinary sense, it cannot be deemed as not being used in the same form as

In addition, Article 36(4) of the Enforcement Rule of the Trademark Act provides that "where an applicant intends to obtain trademark registration falls under Article 6(2) of the Act, he/she may submit to the Commissioner of the Korean Intellectual Property Office a copy of the following matters, documents evidencing the following matters, and articles of evidence, in addition to the documents, etc. referred to in each subparagraph of paragraph (1), and allow the applicant to submit documents, etc. concerning the facts of use such as the trademark used and the period of use, area, etc., but this is merely a provision allowing the Defendant to submit the relevant documents in the application procedure as obvious as the provision itself (Article 14 of the Trademark Examination Standard cited by the Defendant as the ground for the assertion is merely an internal examination standard of the Korean Intellectual Property Office and cannot be recognized as external binding force because the application for trademark registration falls under Article 6(2) of the Trademark Act, such as the Defendant’s assertion, and it cannot be interpreted that the trademark registration must be invalidated

(v) In full view of these circumstances, the registration of the Plaintiff’s registered trademark cannot be deemed null and void by an invalidation trial, and the Defendant’s assertion of abuse of rights in this part is without merit.

B) Whether the effect of trademark rights is restricted

Article 51(1)2 of the Trademark Act provides that a trademark indicating in a common way the shape, etc. of goods identical with or similar to the designated goods of the registered trademark shall not have the effect of trademark rights. Whether it constitutes such trademark ought to be objectively determined in light of the composition, appearance, name, concept, relationship with the goods using the trademark, the circumstances of the transaction society, etc. (see, e.g., Supreme Court Decisions 90Hu175, Dec. 11, 1990; 2009Hu3572, May 26, 201).

In addition, if a certain technical mark is registered pursuant to Article 6 (2) of the Trademark Act, it shall be deemed that the trademark right holder has the right to exclusively use the registered trademark since it has a special distinction under the same paragraph, and the trademark right as to such registered trademark shall be deemed to have an effect on the trademark under Article 51 (2) of the Trademark Act. Thus, notwithstanding the provisions of Article 51 (2) of the Trademark Act, the trademark right holder may prohibit another person from using a trademark identical or similar to the registered trademark as a trademark on goods identical or similar to the designated goods, and the same applies to the case where the other person acquires a special distinction under Article 6 (2) of the Trademark Act by using the technical trademark after the registration (Supreme Court Order 96Ma217 Dated May 13, 1996).

In this case, it cannot be deemed that the Plaintiff’s registered trademark is indicated in a common way as to the shape of an known drug, or in a three-dimensional form with no distinctive character, or that it is an essential form or color to secure the function of an known drug, and rather, it can be deemed that the Plaintiff’s registered trademark has acquired distinctiveness as to the indication of origin as seen earlier. Therefore, it cannot be deemed that the effect of the Plaintiff’s registered trademark is limited by Article 51(1)2, 2-2, and 4 of the Trademark Act. The Defendant’s assertion on this part is without merit.

C. Sub-committee

The defendant shall not produce, transfer, lend, import, or subscribe for transfer or lease (including display for transfer or lease) the defendant's products at the request of the plaintiff and the professional sports owner. The plaintiff's registered trademark shall not be used for known drugs, such as cardio-cerebral medicine. The defendant's office, factory, warehouse, or store, or the defendant's finished products and half-finished products are all stored in the defendant's business office, factory, warehouse, or business office, or the defendant's possession (as long as this part of the plaintiff's claim is accepted, it shall not be judged separately as to the violation of the Unfair Competition Prevention Act, which is the cause of the plaintiff

4. Determination as to the plaintiff's claim for Korean currency interest contract

A. Whether the act constitutes an unfair competitive act - Recognition

1) Consumed legal principles

The form of a product is allowed to be copied and produced in principle unless it is protected by a design right or patent right, etc., but exceptionally, if the form of a product obtains the function of indicating the source of the product and acquires it up to its well-knownness, it is entitled to protection under the Unfair Competition Prevention Act because it falls under “other marks indicating the source of a product” under Article 2 subparag. 1 (a) of the Unfair Competition Prevention Act. In this case, in order to obtain well-knownness with the function of indicating the source of the product, the form of the product must have a unique design character that strongly appeals to the consumer’s sense, compared with other similar products. In addition, the form of the product must have a distinctive character to the extent that ordinary consumers can recognize that the product is a product of a specific business entity for a long period of time. Furthermore, the product type has been used continuously, monopoly or exclusive, or strong publicity and advertisement has been made in a short time (see, e.g., Supreme Court Decision 2007Do1757, Jul. 17, 2007).

The unfair competition act under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act refers to an act that causes confusion with another person's goods by using goods identical or similar to another person's name, trade name, trademark, container, package of goods, or other goods widely known in the Republic of Korea, or by selling, distributing, importing, or exporting goods using such goods. Here, the term "act of causing confusion with another person's goods" includes not only cases where the source of goods is identical, but also cases where ordinary consumers or traders misleads consumers to "whether it is closely related to capital, organization, etc. between the subject of the mark of goods and users" by using a mark identical or similar to the other person's goods mark widely known in the Republic of Korea (see, e.g., Supreme Court Decision 2007Do486, Apr. 27, 2007). Whether the act of causing confusion with another person's goods constitutes an act of causing confusion with another person's goods should be determined by considering the degree of recognition of the mark of goods, degree of similarity, mode of use, similarity, similarity of goods and customer's intent (use).

In addition, in determining the similarity or possibility of confusion as stipulated in subparagraph 1 (a) of Article 2 of the Trademark Act, two goods marks used for the same kind of goods shall be observed in a whole, objective, and dynamic manner, and even if one of the appearance, name, and concept is formally similar, if there is no possibility of confusion in light of the transaction circumstances, the similarity or possibility of confusion shall be denied. In particular, if the goods marks consist of various factors, such as diagrams, pattern, character, sign, color, etc., the parts of the marks should be arbitrarily divided and focus only on their parts, and if they are contributed to indicating the origin of the goods, the similarity or possibility of confusion should not be determined, taking into account all the materials that are contributed to indicating the origin of the goods, the so-called whole observation that comprehensively observe and combines the goods marks with the same kind of goods should be made, taking into account the appearance or concept of the goods, the parts of the goods shall be clearly distinguishable from the other parts of the goods or their packaging, and if the goods marks appear to be separated from the other parts of the goods or their packaging, the goods shall be determined as the so-called phrase or its similarity.

2) The product origin display function and well-knownness

According to the evidence adopted earlier, as seen earlier, the Plaintiff’s product form is in combination with the color of the yellow line and the shape of a multimond pattern, and has a unique design characteristic that appeals from consumers’ sense. From the point of conclusion of the argument in this case to the point of conclusion of the argument in this case, as a result of continuous, exclusive and exclusive use as the Plaintiff’s products of the Plaintiff’s Republic of Korea-U.S. interest chemical substance for a long time, and as a result, strong publicity and advertising has been acknowledged to have been considerably individualized to the extent that it is a trader or a general consumer’s product. Thus, it seems that the distinction between the Plaintiff’s product form and the Plaintiff’s product has a distinctive character to the extent that it can be recognized that it is the product of the Plaintiff’

Therefore, it can be recognized that the product delivery function and well-knownness of the plaintiff's product form can be recognized.

(iii) the possibility of confusion;

As seen earlier, the shape and color of the Plaintiff’s product and the Defendant’s product are identical to the dominant feature of a fromosome figure or a frolomon-shaped figure. On the other hand, the difference in the shape of a frode or the size of a frode, etc., which is about 1cm, appears to be a small portion in light of the size of a frode, etc., which is about 1cm. This point differs from time and place. The Defendant’s products are more likely to be traded in a frode or frode because they are prescribed differently in quantity and capacity depending on the patient’s prescription and quantity. In light of the above circumstances and the degree of well-known and distinctive character of the Plaintiff’s product form, the Defendant’s product’s product’s product’s frod, as seen earlier, may be easily identified by the Defendant’s pharmaceutical products’s pharmaceutical products’s pharmaceutical products’ 9 degree of confusion and confusion among the Defendant’s pharmaceutical products’s product’s actual drug-related employees, as well as the Defendant’s 9 level of confusion.

B. Sub-committee

Since the Defendant’s act of manufacturing, transferring, etc. the Defendant’s products constitutes an unfair competition act, the Defendant shall not manufacture, transfer, lease, import, or subscribe for transfer or lease (including display for transfer or lease) the Defendant’s products upon the Plaintiff’s request, and the form of the Plaintiff’s products shall not be used for known products, such as cardio-cerebrovascular drugs, and the Defendant’s office, factory, warehouse, or business office is kept, or the Defendant’s finished products and semi-finished products are all discarded (as long as this part of the Plaintiff’s claim is accepted, it shall not be separately determined as to the allegation of unfair competition and tort under Article 2 subparag. 1(c) of the Unfair Competition Prevention Act, which are the causes of selective claim

5. Conclusion

All of the plaintiffs' claims shall be accepted with merit. Since the judgment of the court of first instance differs from this conclusion, it is unfair to accept the plaintiffs' appeal and revoke it, and order the defendant to prohibit the production, transfer, lending, import, etc. of the defendant's products.

[Attachment List, etc. omitted]

Judges Dok-won (Presiding Judge) Jink-Jak Jin-Jin Park