Dongbu Housing Construction Co., Ltd. (Attorney Kim Young-hoon, Counsel for defendant-appellant)

Dongbu Construction Co., Ltd and three others (Attorney Kang Dong-chul, Counsel for the plaintiff-appellant)

December 9, 2009

Seoul Central District Court Decision 2007Gahap53230 Decided August 27, 2008

The plaintiff's appeal against the defendants is dismissed in entirety.

Expenses for appeal shall be borne by the plaintiff.

Purport of claim

The Plaintiff, the Defendant East Construction Co., Ltd., in relation to the portion of the corporate register (registration No. 00570) held and managed by the Commercial Registry of the Seoul Central District Court, as to the “Dong East Construction Co., Ltd.” among the “Dong East Construction Co., Ltd.,” the Defendant East Construction Co., Ltd.’s corporate register (registration No. 213970), as to the “Dong East Construction Co., Ltd,” among the “Dong East Construction Co., Ltd.’s corporate register (registration No. 213970), as to the “Dong East Construction Co., Ltd.,” the Defendant East Construction Co., Ltd.’s corporate register (registration No. 003537), as to the “Dong East Construction Co., Ltd., Ltd.’s corporate register (registration No. 004173).

Purport of appeal

The judgment of the first instance shall be revoked. The same shall apply to the entries in the purport of the claim.

1. Basic facts

[Evidence A] 1-5 Evidence Nos. (including branch numbers, if any) and the purport of the whole pleadings

A. On March 14, 1984, the commercial registry number of the Seoul Central District Court was No. 4304, the Plaintiff completed the registration of incorporation by changing the name into a company for Dong Housing Construction Co., Ltd. (Dong Housing Construction Co., Ltd.) and the location of its head office into 302 amba building 203, Gangdong-gu, Seoul Metropolitan Government (the address of its head office was changed several times in Seoul, and it was changed several times on October 12, 2007 as of October 12, 2007). Real estate sale and lease business, building material sales business, and business incidental to each of the above paragraphs (the purpose of its establishment was changed to a housing construction business, real estate sales and rental business, building material sales business, building material sales business, and business incidental to each of the above paragraphs, and at present, an engineering work business, electrical and telecommunications construction business, etc. was added).

B. Meanwhile, the Defendants completed the registration of incorporation of each company as follows.

(1) On January 24, 1969, Defendant Dong Construction Co., Ltd. (hereinafter “U.S. Construction Co., Ltd.”) had a trade name No. 570 on January 24, 1969, and had its head office changed to 21-9, Jung-gu, Seoul (hereinafter “Seoul, 2006, changed to 891-10, as of August 25, 2006), as civil engineering, construction, road packing construction, printing and installation of steel products, construction and installation of steel products and other special construction business, electricity construction business, housing site construction and installation business, public water reclamation business, housing construction and lease business, housing construction and military supply business, civil engineering and construction equipment construction business, and building equipment manufacturing and sale business (after several changes to the purpose of its establishment, the change to the current housing, office construction and sale business, etc.).

(2) On February 28, 1984, the Defendant Dong Branch, Inc., changed the name of the company from No. 213970 on the registration number No. 213 on the part of Suwon District Court’s branch, to the “Tridong Co., Ltd.,” and changed the location of the headquarters to 21-9 on January 2, 2001, the name of the company was changed to 21-9, Jung-gu, Seoul, Jung-gu, Seoul, and changed to 891-10 on January 30, 202, as of January 30, 2002, the purpose of its establishment was changed to 891-10 on the part of the company affiliated with each of Suwon District Court’s branch. After the change to the name of the company as of March 13, 1992, Dong Branch, Inc., Ltd., as of 201.

(3) On September 18, 2001, the Seoul Central District Court's Commercial Registry No. 3537 of the Seoul Central District Court completed the registration of incorporation by designating the name as "Dongbuf Co., Ltd."; the location of the principal office as "Dongbuf Co., Ltd."; the purpose of incorporation of the housing construction project, housing supply project, and investment of surplus funds, etc.

(4) On February 18, 2003, Defendant Dongbusan Development Limited Co., Ltd. completed the registration of incorporation with its trade name under the registration number 004173 on February 18, 2003 as “Dongbu Busan Development Limited Co., Ltd.”, its head office as 891-10, Gangnam-gu, Seoul, the establishment purpose of which is the housing construction business, housing supply business, investment of surplus funds, etc.

2. The plaintiff's ground for claim

The plaintiff asserts that both the "Dongbu Housing Construction Co., Ltd." and the "Dongbu Construction Co., Ltd.", the company registered with the same registry and the "Dongbu Construction Co., Ltd.", the defendants registered with the same registry and the "Dongbu Construction Co., Ltd.", the "Dongbuf Co., Ltd.", the "Dongbuf Co., Ltd.", the "Dongbuf Co., Ltd." and the "Dongbuf Development Co., Ltd." all constitute the same trade name that can not be clearly distinguished as its main part, and the defendants' business also belong to the same kind of business as the plaintiff's construction business. Thus, pursuant to Article 22 of the

3. Determination

(a) Criteria:

Article 22 of the Commercial Act provides that "No person who has registered another person shall register the same trade name as that of another person with the same Special Metropolitan City, Metropolitan City, Si, or Gun." The purport of the above provision is to prevent misunderstanding or confusion among the general public with regard to the trade name first registered within a certain area, to protect the interests of the person who has first registered the trade name in order to distinguish the trade name from that of another person." Meanwhile, Article 164 of the Non-Contentious Case Litigation Procedure Act provides that "The registration under the same name may not be clearly distinguishable from that of another person with regard to the same trade name registered for the same business purpose." Article 22 of the Commercial Act provides that "The first registered trade name shall be excluded from that of another person with the same trade name registered for the same business purpose as that of another person, and if the same trade name is registered within the same Special Metropolitan City, Metropolitan City, Si, or Gun, it shall be excluded from that of another person with the same trade name registered for the same business purpose as that of another person, and it shall be excluded from that of another person with the same trade name registered within 20.

B. Whether it is possible to request the Plaintiff to cancel the Plaintiff’s trade name registration against the Defendants

(1) Whether the same area and the same business are operated

According to the facts acknowledged above, both the Plaintiff and the Defendants registered their respective trade names shall be the same area as Seoul Special Metropolitan City, and both the Plaintiff’s business and the Defendants’ business belong to the housing construction business or the same type of business.

(2) Determination of identity, etc. of trade name

㈎ 피고 동부건설 주식회사

Comparing with “Dongbu Housing Construction Co., Ltd.” registered by the Plaintiff and “Dongbu Construction Co., Ltd.” registered by Defendant Dongbu Construction Co., Ltd., it is recognized that the term “Dongbu” is commonly included in the Plaintiff’s trade name and the above Defendant’s trade name.

However, even if the Plaintiff’s trade name and the above Defendant’s trade name are clear in terms of their appearance and name, and even if each of the above trade names cannot be easily distinguished, since the trade name is the name used by merchants to indicate himself/herself, the Plaintiff or the above Defendant’s trade name, except for the part representing the company’s type, can be called as a trade name rather than a trade name. Thus, if excluding the part of “stock company”, the Plaintiff can be called as “Dong Construction” and the above Defendant’s right to use the same as “Dong Construction.” Since the Plaintiff’s trade name is an important part of “Dong Construction,” the Plaintiff’s right to use the same as “Dong Construction,” which is an “Dong Construction,” and the Plaintiff’s right to use the same as “Dong Construction,” which is an “Dong Construction,” which cannot be seen as being excessively different from that of “Dong Construction,” the Plaintiff’s trade name cannot be seen as being “Dong Construction,” and thus, the Plaintiff’s trader or general consumers’s right to use the same as “Dong Construction.”

㈏ 피고 주식회사 동부

Comparing with “Dongbu Housing Construction Co., Ltd.” registered by the Plaintiff and “Dongbu” register registered by the Defendant’s Dong division, it is recognized that the Plaintiff’s trade name and the above Defendant’s trade name commonly include the word “Dongbu”.

However, as to whether the Plaintiff’s trade name and the above Defendant’s trade name are clearly identical in appearance and name, and whether each of the above trade names can not be clearly distinguishable from each other, as seen earlier, since the Plaintiff’s trade name is a name used by merchants to indicate himself/herself in business, the Plaintiff’s trade name can be called as a whole rather than the Plaintiff’s trade name as a trade name. In this case, if the part of “stock company” indicating the type of company is excluded, the Plaintiff’s name can be called as “Dong Housing Construction”, and the above Defendant’s name is called “Dong Dongbu” only as “Dongbu”. Accordingly, the “Dong Housing Construction Division” is called “Dongbu” as “Dong 3 proviso,” and “Dongbu” as “Dong 2 proviso,” and the Plaintiff’s trade name is in combination with “Dongbu” and “Housing Construction Company” as “Dongbu,” and thus, it is not obvious that the Plaintiff’s trade name is different from that of the Plaintiff, which is the Defendant’s joint stock company.

㈐ 피고 동부디엔씨 유한회사, 동부부산개발 유한회사

Comparing with the “Dongbu Housing Construction Co., Ltd.” registered by the Plaintiff, and the “Dongbuf Co., Ltd.” and the “Dongbuf Co., Ltd.” and the “Dongbuf Co., Ltd., Ltd.” registered by the Defendant Dongbuf Co., Ltd., and the “Dongbuf Co., Ltd., Ltd.,” and the “Dongbuf Co., Ltd.

However, it is apparent that the Plaintiff’s trade name and the above Defendants’ trade name are not identical. Then, compared the Plaintiff’s trade name and the above Defendants’ trade name, the Plaintiff is a stock company, and the above Defendants are different in the type of the company as a limited liability company, and even if the part concerning the type of the company is excluded, the Plaintiff’s trade name includes a “housing Construction” indicating the business type following the Plaintiff’s trade name. However, each of the above Defendants’ trade names is combined with “dienc” or “subindustrial Development,” which is entirely different from the above “Dongbu” and thus, it cannot be said that each of the above Defendants’ trade names led to the extent that it is difficult to distinguish the Plaintiff’s trade name from the Plaintiff’s trade name.

(3) Sub-decisions

Ultimately, the Plaintiff’s trade name and each of the Defendants’ trade names cannot be identical or accurately distinguished. Thus, the Plaintiff’s claim for cancellation of the trade name registration against the Defendants is without merit.

4. Conclusion

Therefore, all of the plaintiff's claims against the defendants are dismissed as they are without merit, and the judgment of the court of first instance is just in conclusion, and all of the appeals against the defendants are dismissed. It is so decided as per Disposition.

Judges Choi Sung-sung (Presiding Judge)