[1] Whether the former Unfair Competition Prevention Act can be applied to the rights protected by other laws, such as the Trademark Act (affirmative)

[2] The meaning of "unfair competition act" under Article 2 subparagraph 1 (a) and (b) of the former Unfair Competition Prevention Act

[3] Where a trademark or service mark is widely recognized as indicating a specific person's business even if it is not protected under the Trademark Act, whether it constitutes a trademark protected under the former Unfair Competition Prevention Act (affirmative) and the meaning of "merger" under Article 2 subparagraph 1 (b) of the same Act

[1] The provision of Article 15 of the former Unfair Competition Prevention Act is merely a provision which provides that the trademark law shall be governed by the former Unfair Competition Prevention Act. Thus, even if the right is protected by other Acts such as the Trademark Act, the former Unfair Competition Prevention Act may be applied to the extent that it does not conflict with the former Act.

[2] An act under Article 2 subparagraph 1 of the former Unfair Competition Prevention Act does not necessarily require the use of a trade name identical or similar to a registered trademark (service mark) because it is different from the infringement of trademark rights. It refers to any act that causes confusion with another person's goods by using a mark identical or similar to another person's name, trade name, trademark, container or package, or other mark indicating another person's goods, regardless of whether it is registered, or by selling goods using such a mark, or causing confusion with another person's business facilities or activities.

[3] Even though a trademark or service mark consisting solely of a conspicuous geographical name and is not protected under the Trademark Act, if it has been used for a long time and thus becomes widely known to traders or ordinary consumers as indicating the business of a certain person, it shall be deemed as a business mark protected under the former Unfair Competition Prevention Act (including all marks indicating another person's name, trade name, mark, and other business). The act of unfair competition which causes confusion with another person's business facilities or activities even if it is mistaken for a business relation between the facilities or activities of two business operators as being in a business relation, organizational, financial, or contractual relationship.

[1] Article 15 of the former Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 1 and Article 15 of the current Unfair Competition Prevention and Trade Secret Protection Act, Article 6 (1) 4 of the Trademark Act / [3] Article 2 subparagraph 1, Article 15, and Article 18 of the former Unfair Competition Prevention and Trade Secret Protection Act, Article 6 (1) 4 of the Trademark Act

[1] Supreme Court Decision 94Do2054 delivered on January 19, 1993 (Gong1993Sang, 781), Supreme Court Decision 94Do3287 delivered on November 7, 1995 (Gong1995Ha, 395Ha, 3954), Supreme Court Order 96Ma217 delivered on May 13, 1996 (Gong1996Ha, 1828) / [2] Supreme Court Decision 81Do649 delivered on September 22, 1981 (Gong1981, 14394), Supreme Court Decision 95Do1464 delivered on January 26, 196 (Gong196Sang, 834), Supreme Court Decision 96Do3979 delivered on May 31, 1996 (Gong196Do3975 delivered on May 31, 1996)

Defendant

Prosecutor

Attorney Park Jong-dong, Counsel for the plaintiff-appellant

Daejeon District Court Decision 96No1340 delivered on January 17, 1997

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, since the Trademark Act and the Unfair Competition Prevention Act aim at maintaining fair competition order through the prevention of unfair competition, and the Unfair Competition Prevention Act are comprehensive laws to prevent all unfair competition acts, the Trademark Act has the special character of preventing unfair competition acts related to trademarks, so even for uniform interpretation of these Acts, the scope of trademarks or service marks subject to protection under the Unfair Competition Prevention Act is limited to trademarks or service marks with special distinction under Article 6 (2) of the Trademark Act, and Article 15 of the Unfair Competition Prevention Act provides that if there is a provision different from the Unfair Competition Prevention Act under the Trademark Act, it shall not be applied to the case where the Trademark Act provides that "the service marks consisting solely of a conspicuous geographical name shall not be distinguish between the original service business and the original service mark, and as such, it results in the deprivation of the rights of other persons to freely use the service marks, and thus, it is prohibited from being registered as an exclusive service mark under the Unfair Competition Prevention Act as well as from being registered under the Unfair Competition Prevention Act.

However, the provision of Article 15 of the Unfair Competition Prevention Act is merely a provision that differs from the provision of the Unfair Competition Prevention Act. Thus, even if a right is protected under other Acts, such as the Trademark Act, the provision can be applied to the Unfair Competition Prevention Act within the extent not in conflict with that Act (see, e.g., Supreme Court Decisions 92Do2054, Nov. 19, 1993; 94Do3287, Nov. 7, 1995; 96Ma217, May 13, 1996); and also, Article 2 subparagraph 1 of the Unfair Competition Prevention Act does not require the use of a trade name identical or similar to the registered trademark (service mark), trade name, trademark, container or package of goods, or any other mark indicating goods of another person, which is actually widely known in the Republic of Korea, causing confusion with goods of another person or causing confusion with goods of another person, 96Do1965, Nov. 16, 1996.

Therefore, even if a trademark or service mark consisting solely of a conspicuous geographical name and is not protected under the Trademark Act, if it is widely known by traders or ordinary consumers as indicating a certain person's business for a long time, it constitutes a business mark protected under the Unfair Competition Prevention Act (limited to a service mark, but including the name or trade name, or any other mark indicating another person's business), and if it is mistaken that there is a business, organizational, financial, or contractual relationship between the facilities or activities of two business operators, it constitutes an unfair competition act that causes confusion with other person's business facilities or activities (see Supreme Court Decision 96Do2650, Dec. 12, 1997).

Nevertheless, the court below determined that the defendant's act is not an unfair competition act under the premise that the service mark which is only a conspicuous geographical name not protected under the Trademark Act is not an act of unfair competition under the premise that it is not an act of another person's business mark protected under the Unfair Competition Prevention Act. Such decision of the court below is erroneous in the misapprehension of legal principles as to unfair competition, and

The appeal pointing this out is with merit.

Therefore, the judgment 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.

Justices Song Jin-hun (Presiding Justice)