The defendant shall be innocent.

1. The summary of the facts charged in the instant case is a person who runs online sales business in the open market, such as C, D, E, etc., with the trade name of “B,” and the victim F is a trademark right holder of “G”.

On April 6, 2020, the Defendant sold women’s shoes at the Internet shopping site “C”, and indicated the product’s title as “ women’s lower flus H 3.0cm Women’s Slick Women’s Slick Women’s Campaignization,” and infringed a trademark right holder’s trademark right by using the name “G” in which the trademark right holder registered the trademark with the Korean Intellectual Property Office as designated goods.

2. Determination

A. The infringement of trademark rights under the Trademark Act is an intentional crime, and even if a trademark identical or similar to another person’s registered trademark is used for goods identical or similar to the designated goods, if it is not recognizable that it is another person’s registered trademark, this crime is not established (see Supreme Court Decision 2010Do4473, Apr. 28, 201).

The following circumstances acknowledged by the records of this case, namely, the victim registered the trademark of this case on May 3, 2018, and the trademark right and service mark right under the Korean Trademark Act, which takes account of the principle of registration, were generated only through the establishment registration. As above, the defendant seems to have sold the new trademark using the trademark of this case in the shopping mall since before the victim registered the trademark, and even according to the victim's statement in this investigation agency, it is not clearly confirmed that the victim notified the defendant that the trademark of this case was registered at the time when the date indicated in the facts charged of this case was recorded, and there is no other evidence to deem that the defendant was aware that the trademark of this case was registered at the time of the date indicated in the facts charged of this case, and the victim operated G mobile shopping mall itself using the registered trademark of this case.