[1] Where a trademark is acquired for the purpose of causing confusion with another person's goods by using a trademark identical with or similar to another person's trademark widely recognized domestically, whether it can be recognized as a legitimate exercise of the right under the Trademark Act (negative)

[2] In a case where a trademark consisting solely of a simple and ordinary mark has been used for a long time, and thus customers or ordinary consumers widely recognize it as indicating the goods of a specific person, whether it constitutes a product mark protected under the Unfair Competition Prevention and Trade Secret Protection Act (affirmative)

[3] The case holding that an act of using a trademark as a trademark for light products, etc. is an act of unfair competition with the purpose of causing ordinary consumers to confuse the products with those of others and thus making unfair profits, and thus, constitutes an act of unfair competition

[1] Articles 2 subparag. 1 and 15 of the Unfair Competition Prevention and Trade Secret Protection Act, Article 7(1)10 and 12 of the Trademark Act, and Article 41(1) of the Trademark Act / [2] Articles 2 subparag. 1 and 15 of the Unfair Competition Prevention and Trade Secret Protection Act / [3] Articles 2 subparag. 1 (a) and 15 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 92Do2054 delivered on January 19, 1993 (Gong1993Sang, 781) Supreme Court Decision 98Da49142 delivered on May 12, 200 (Gong2000Ha, 1371) Supreme Court Decision 2000Da4487 delivered on April 10, 2001 (Gong2001Sang, 1100) / [2] Supreme Court Decision 97Do322 delivered on April 23, 199 (Gong199Sang, 108) Supreme Court Decision 2006Do8958 delivered on June 14, 2007

Applicant Co., Ltd. (Law Firm Squa, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Respondent Co., Ltd. and one other

Seoul High Court Order 2006Ra1067 dated November 7, 2007

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

1. Where trademark rights are acquired in the form of a trademark for the purpose of making profits by using a trademark identical with or similar to another person's trademark widely recognized in Korea, not for the purpose of distinguishing one's own goods from another's goods, the purpose of the application for trademark registration itself is unfair competition. Even if a trademark is recognized as a type of exercise of right, it is not recognized as a legitimate exercise of rights under the Trademark Act because it has abused or abused the Trademark Act (see, e.g., Supreme Court Decisions 92Do2054, Jan. 19, 1993; 200Da4487, Apr. 10, 2001; 200Da4487, Apr. 10, 200). Meanwhile, even if a trademark consisting solely of a simple and common mark is used for a long time and thus widely known to customers or general consumers as indicating certain person' goods, it constitutes a product protected under the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "Unfair Competition Prevention Act").

2. The judgment of the court below on the main motion

The lower court determined to the purport that the trademark “1” (hereinafter “1 trademark”) as indicated in the judgment of the respondent is composed of “K”, a meaningful sign “K”, a Arabic figure “2,” and a trademark “2 trademark as indicated in the judgment of the lower court (hereinafter “2 trademark”) is composed of three-dimensional shapes, three-dimensional shapes, the inner upper group’s “K-2”, and the inside bottom’s “Matatin” letters. Each of the above trademarks does not have any particular concept in its own or each component, and the parts of the above elements are indivisible to the extent that they are natural if they are separately observed. However, the respondent’s trademark Nos. 1, 2 of the respondent is not identical or similar to the trademark of this case when comprehensively compared with its appearance, name, and concept.

3. The judgment of this Court

However, the above determination by the court below is without merit for the following reasons.

According to the records, the applicant company and the applicant company used the trademark within the scope of identical to the trademark, such as "K 2, K2, and K2, for more than 20 years." From 2001 to 200, "K2" trademarks were advertised by using radio, subway and bus outer walls, etc. The applicant company's total sales amounting to 40 billion won of the applicant company from 197 to 2000, and the total sales amount of the applicant company's 200,000,000 won, including 200,000,000,000 won, and about 30,000,000,000 won, and about 203,000,000,000 won, and about 203,000,000,000 won.

In light of the aforementioned various circumstances, the applicant company used trademarks identical to K2 for a long time from around 202 to continuously and indirectly use the trademark from around April 30, 2004, which are the filing date of the first trademark, as well as the trademark already recognized as the trademark's product mark of the applicant company. Thus, the applicant company can recognize the acquisition of distinguishability and well-knownness of the first and second trademarks, which are compared to the trademark, since the majority of consumers have reached the recognition of the trademark as the trademark's product mark of the applicant company. However, each "K-2" of the first and second trademarks, compared to the trademark, can be easily recognized separately from other constituent parts. Since the trademark's appearance, name, and concept are extremely similar to those of the trademark, if it is used for products such as 1,22 trademarks, including "K-2" which are used for products such as mountain products, etc., it would cause confusion between ordinary consumers and consumers as to the source of the goods and thus, it would cause confusion with the trademark's use of the trademark.

Therefore, the court below should have judged that the act of filing an application for registration of the first and second trademarks and the act of using them constituted an unfair competition act, but dismissed the applicant's primary application on the ground that the respondent's first and second trademarks and the applicant's trademark are not identical or similar to the same, there is an error in the misapprehension of legal principles as to the determination of similarity of goods marks under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act, and the grounds for re-

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)