The meaning of ordinary type of goods of the same kind as defined in Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act;

Article 2 Subparag. 1(i) of the Unfair Competition Prevention and Trade Secret Protection Act provides that an act of transferring or lending, etc. goods which imitates the form of goods produced by another person is excluded from an act of unfair competition. The act of transferring or lending, etc. goods of the same kind (in the absence of the same kind, referring to the goods of the same kind, their function and utility are identical or similar goods) ordinarily owned by another person is excluded from the act of unfair competition. Here, the form of ordinary possession of the same kind of goods means the form of general adoption in the area of the same kind of goods, namely, in which the employment is inevitable to achieve the function and efficacy of the goods or to compete in the area of the goods.

Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act

[Defendant-Appellee] Defendant 1 and 1 other (Law Firm LLC et al., Counsel for defendant-appellee)

East Asia LLC Co., Ltd. (Law Firm LLC, Attorneys Jeong Sung-tae et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2014Na54489 Decided April 23, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 2 subparag. 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) provides that an act of transferring or lending goods that imitates the form of goods produced by another person is excluded from an act of unfair competition, such as transfer or lease of goods produced by another person (if there is no identical goods, referring to the goods, function, and utility of the same kind of goods) and the goods of the same kind of goods produced by another person (in the absence of the same kind of goods, referring to the goods that are identical or similar to those of the same kind of goods). Here, the form of ordinary goods of the same kind of goods refers to the form generally adopted in the area of the same kind of goods, in which the employment is inevitable to achieve the function and effectiveness of the goods

2. We examine records in light of the above legal principles.

The Plaintiff’s products as indicated in the holding of the court below are two-dimensional fire extinguisherss that are composed of two fire extinguisherss to be carried in one case, and as a whole, they are the basic shape that combines two original columns which carry fire extinguishers cans into two sections, and connects the upper part of which is right and flatly, but display the upper part of the original pole only to the inside. From the opposite part, from the bottom to the upper part of the original pole’s upper part, the front part of the original pole seems to have been cut entirely from every end up until the beginning of insignia. In addition, from 0 parts of the original pole’s upper part of the front pole’s body and the upper part of the original pole’s body are formed with a set box, and from 0 parts of the central part of the two parts of the fire extinguisher’s product, they are placed in the middle part of the two parts, and they are in substance connected with the safety of the Plaintiff’s product type 198 square meters’s shape.

Meanwhile, compared to the two-dimensional fire extinguishers of Oil Metal Co., Ltd., which can concretely grasp the window dressing and the window dressing on the records, unlike the above product with the window dressing tool of each dust shape and the window dressing tool of a shape close to the four-dimensional shape, it can be seen that there is a little difference between the product and the prior product in terms of its original form and the window dressing shape. Furthermore, in light of the importance of the shape of the entire product in the form of the product or its visual effect, it is difficult to view such difference as a form that accords a identity distinct from the other product. The Plaintiff asserted that the prior product is not the product of the same kind as the Plaintiff’s product, but the Plaintiff’s assertion that the product is not the same kind of product due to such specific difference cannot be accepted.

Therefore, the form of the Plaintiff’s product is merely an ordinary form of the same product, and it is difficult to view it as a product form protected by Article 2 subparag. 1(i) of the Unfair Competition Prevention Act.

The court below is just to have determined that the form of the Plaintiff’s product constitutes an ordinary form of the same kind of product, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the ordinary form of the

In addition, as long as the form of the Plaintiff’s product falls under the ordinary form of the same kind of product, the remaining grounds of appeal as to whether the Defendant’s product imitated the Plaintiff’s product can not affect the conclusion of this case.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)