[1] Requirements for the container or package of the product to constitute "a mark (mark) indicating that the product is another person's goods" under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act

[2] The method of determining whether a product label is similar to a product label under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act where the product label consists of various elements such as letters, diagrams, symbols, and colors

[3] The standard for determining whether the product causes confusion with another person's product under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act

[4] The case holding that the product label of "New Roby WRP" which is the product for food packaging (WRP) violates the former Unfair Competition Prevention Act on the ground that it causes confusion and confusion similar to the product label of "CLEWP" which is the like product

[1] Generally, a container or package does not have the function of indicating the origin of a product. However, only if the shape, structure, pattern, color, etc. of a container or package is used as a means of giving a unique identity to the product for a long period of time, and its features are continuously used exclusively, exclusively, or continuously advertised by continuous publicity advertisement, etc., to the extent that the differentiated feature of its shape, structure, or color, etc. is considerably individualized to the extent that it is a product of a specific source with a specific quality to customers or users, it constitutes "mark (mark) indicating another person's product" under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Act No. 5621 of Dec. 31, 1998).

[2] In a case where a mark indicating the goods of a certain source consists of various elements, such as letters, diagrams, symbols, colors, etc., the determination as to the similarity of the goods mark under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Act No. 5621 of Dec. 31, 1998) shall be made by observing and comparing the appearance, name, and concept of the mark in a whole and in a separate manner from the perspective of the trader or ordinary consumers, taking into account all the elements that contribute to the display of the goods.

[3] Whether a confusion with another person's goods under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Law No. 5621 of December 31, 1998) causes confusion with another person's goods should be determined by considering the degree of well-known and distinctive character of the product mark, degree of similarity, mode of use, similarity of the product, existence of competitive and competitive relations due to the product's similarity and overlapping of customer stories, and existence of bad faith (use) of the imitate.

[4] The case holding that a product label of "New Roby WRP" which is a product for food packaging (WRP) violates the former Unfair Competition Prevention Act on the ground that it causes confusion and confusion similar to the product label of "CLEWP" which is a like product

[1] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Act No. 5621 of December 31, 1998) / [2] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Act No. 5621 of December 31, 1998) / [3] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Act No. 5621 of December 31, 1998) / [4] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act, Act No. 5621 of December 31, 1998)

[1] [2] Supreme Court Decision 98Da63674 delivered on February 23, 2001 (Gong2001Sang, 723) / [1] Supreme Court Decision 94Do1947 delivered on December 2, 1994 (Gong1995Sang, 526) Supreme Court Decision 96Do295 delivered on November 26, 1996 (Gong197Sang, 147), Supreme Court Order 96Ma365 delivered on November 27, 1996 (Gong197Sang, 72) / [2] Supreme Court Order 96Ma675 delivered on April 24, 197 (Gong197Sang, 1951) / [3] Supreme Court Decision 96Da10780 delivered on July 25, 197 (Gong197Da155784 delivered on July 28, 197)

Defendant

Prosecutor

Seoul District Court Decision 97No8683 delivered on June 30, 1998

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The prosecutor's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found the defendant not guilty on the ground that the mark such as "crap" manufactured and sold by the victim corporation was widely recognized domestically, but the part of "WAP, which is only the word used as the ordinary name of the package" and the part of "WAP" is separated from the part of "crap" used as the ordinary name of the package, and it is difficult to view both trademarks as similar to their appearance, name, and concept, and it is difficult to see that the two trademarks are not similar to those of "crap", and that the color and design of the product package alone would cause confusion with the goods. Thus, the facts charged in this case on the premise that the defendant's "crap" would cause confusion with the "crap" constitutes a case where there is no proof of criminal facts.

2. Generally, the container or package does not have the function of indicating the origin of the product. However, only if the shape, structure, pattern, color, etc. of a certain container or package is used as a means of giving a unique identity to the product for a long period of time, or if it has been used continuously, exclusively, or continuously for advertisement, etc., and the differentiated feature of its shape, structure, or color, etc. is considerably individualized to the extent that it is the product of a specific source with a specific quality to customers or users, it constitutes "the Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 5621 of Dec. 31, 1998; hereinafter referred to as "the Unfair Competition Prevention Act") Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (amended by the Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 5621 of Dec. 31, 199; hereinafter referred to as "the Unfair Competition Prevention Act"), it constitutes "a mark indicating another person's product (a mark).

In addition, in a case where a mark indicating that it is a product of a certain source (hereinafter referred to as a "product mark") consists of various elements such as letters, diagrams, symbols, and colors, the determination as to the similarity of the product mark under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act shall be made by observing and comparing the appearance, name, and concept of the mark from the perspective of the trader or ordinary consumers in light of all the elements contributing to the display of the product (see Supreme Court Decision 76Da847 delivered on July 25, 1978).

In addition, the issue of whether it causes confusion with another person's goods should be determined after considering the well-knownness and distinctiveness of the product mark, degree of similarity, mode of use, similarity of the product, existence of competitive and competitive relations due to the overlapping of customer class, and existence of bad faith (use), etc.

3. According to the records, the victim's crap Co., Ltd. (hereinafter referred to as "victim") has sold crap for food packaging (WRP) by putting it into containers and packaging containers of a string body with a longer direct surface of container shape. It has been used continuously, exclusively and exclusively for a long time, and by continuous publicity advertisement, etc., the letter or figure, color, and other features indicated on the above package as well as the word or figure, color, and other features indicated on the above package are differentiated. The defendant's use of the product label at January 1994 at the time of manufacturing and selling the food packaging rap, which has already been individualized to consumers in Korea to the extent that it is the product of a specific quality of the source, so the victim's crap's crap's name and figure are indicated as "the product of another person" as defined in Article 2 (1) (a) of the Unfair Competition Prevention Act.

Then, comparing the victim's product label with the product label of this case, it seems normal to select all or the surface of the product when purchasing the product of this case, rather than on the container marked by the manufacturer of the product of this case. Considering the victim's container, the victim's packaging is marked "CLEWP" on the upper side of the product of this case, and the above letters are different from that of the product of this case from the product of this case, the product of this case is marked with the product of this case's label, the product of this case's label and the product of this case's label are similar to the product of this case's label's label, the product of this case's label, the product of this case's label, the product of this case's label, the product of this case's label, and the product of this case's label, the product of this case's label, the product of this case's label, the product of this case's label or e-mail is similar to the product of this case's label.

In addition, considering the fact that the victim's product label is widely and clearly known and well-known, the product label is similar, the product is identical to the product and the customer floor overlaps, the use of the defendant's product, etc., it is deemed that the defendant's act of manufacturing and selling the product similar to the container of the victim's product is an act of causing confusion with the products of the victim.

Ultimately, the use of the above product labels by the defendant should be viewed as violating the Unfair Competition Prevention Act.

Nevertheless, the court below found the defendant not guilty on the ground that the defendant and the injured party's product labels are not similar to each other and they do not cause confusion between the two products. Thus, the court below erred by misapprehending the legal principles as to the similarity of product labels and confusion of products under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act. Thus, the ground for appeal pointing this out is justified.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)