2013Kahap1178 Provisional Disposition against Infringement of Trademark Right

Al Fura (AGTHHA DIF USS SARL)

France, 9300 Megra, 45 Megra New Zealand, Megra 258

D (Batist 258 Sud, 45 AV Hugo, F 9300

AUBERVLLIERS FRCE)

Representative Chapter******

Law Firm Western, Attorney Kim Young-hoon, Counsel for the plaintiff-appellant

1. OOOOO directors;

Representative Director Kim*

2. △△ Group Co., Ltd.

room* Representative Director**

Respondent Law Firm Changyang, Attorney Kim Sung-ju, Counsel for the defendant-appellant

August 19, 2013

1. The respondent shall not use the marks listed in paragraph (1) and marks listed in paragraph (2) of the attached list for products listed in paragraph (2) of the attached list and their packaging papers, packaging containers, advertising advertisements, and produce, sell, distribute, distribute or export them for such purposes;

2. The respondent shall set aside the finished products and semi-finished products listed in paragraph 1 of the attached list and paragraph 2 of the same Article using marks in its office, factory, and warehouse, and each mark in the annexed list in which the respondent uses the marks, and shall have the execution officer entrusted by the applicant keep them in custody.

3. An execution officer shall, in case where the respondent keeps the products, packaging sites, packaging containers, and advertising advertisements listed in paragraph (2) of the above Article in the place where they were in custody, publicly announce the purport of the custody in an appropriate manner.

4. Where the respondent violates the obligations set forth in Paragraph 1 above, the respondent who has committed the breach of such obligations shall pay 50,000 won to the applicant once the violation (each of the acts set forth in Paragraph 1 above as to one set of the products set forth in Paragraph 2 of the Schedule shall be deemed to have been committed once in total).

5.Paragraphs 1 to 4 shall be subject to the condition that the applicant deposits KRW 100 million per respondent as security on behalf of the respondent (total of KRW 200 million) on account of the respondent, but it may be substituted by submitting a payment guaranty insurance policy of KRW 50 million out of each of the above KRW 100,000,000 as the insured amount.

6. Each remaining claim against the respondent is dismissed.

7. Litigation costs shall be borne by the respondent.

1. Decision of the same purport as paragraphs (1) through (3) of this Article;

2. Products, packaging materials, and packaging materials described in paragraph (2) of the order kept by the respondent in any other place;

The cancellation of possession of advertising advertisements, and orders to keep them in custody of enforcement officers;

3. Orders to publicly announce the execution officers with respect to each of the above orders.

4. As to the Respondent’s violation of the duty set forth in paragraph (1) of this Article, five million won per time of the violation

order of indirect compulsory enforcement

1. Facts of vindication;

According to the records, the following facts are proved.

(a) The applicant’s registered trademark;

The applicant is a company established in accordance with French law and is a trademark holder of each of the following registered trademarks (hereinafter referred to as "each of the registered trademarks of this case"):

1) The first registered trademark (hereinafter referred to as "first registered trademark"): the filing date of the application of AGHA or) / the registration date / the registration date for renewal of the term: August 16, 199 / May 2, 2000/ May 31, 2010.

(C) Registration number: The date of filing of the registered trademark (hereinafter referred to as "registered trademark 2) No. 2 (b) of (hereinafter referred to as "registered trademark of this case") of Category 18: The date of filing of the goods(b) - the date of filing of the registered trademark (hereinafter referred to as "registered trademark of this case"): The date of December 3, 2010 / the date of registration: the date of December 3, 2010 / the date of September 29, 2011.

(C) Registration number: The designated goods of Category 9: Ansan, etc. (detailed contents omitted), 18 - (detailed contents omitted), 25 - Articles 3 (hereinafter referred to as the "third registered trademark of this case") of the registered trademark (hereinafter referred to as the "third registered trademark of this case"): the filing date of the Atab) / the registration date: The date of January 14, 2004 / December 8, 2005

C) Registration number: Designated goods of Category 3: - Bather, etc. (detailed content omitted), Category 14 - Twelves (detailed content omitted), Category 18, - 25, - Sacker, Twelves, Swelves, Swelves, Poves, Titts, etc. (detailed content omitted).

B. The respondent's product respondent sells products listed in Paragraph 2 of the attached list (hereinafter referred to as "products of this case") using each mark listed in Paragraph 1 of the attached list and each mark indicated in Paragraph 1 of the attached list (hereinafter referred to as "the first mark of this case", the remainder of the mark is identical in the same manner, and referred to as "each mark of this case").

2. Determination

A. Whether trademark right infringement is infringed

1) In comparison with each of the instant registered trademarks and the instant marks, the trademarks are identical with the appearance, title, and the appearance, and concept of the instant trademarks. ② The instant registered trademarks and the marks No. 2 are identical with the marks of the instant trademarks, and ③ The appearance, title, and title of the instant registered trademarks and the marks No. 3 of the instant case are identical. Meanwhile, the instant products are identical or similar to the instant registered trademarks, which are the designated goods of each of the instant registered trademarks, as the instant products are considerably deemed to belong to the clothing products. Meanwhile, the instant products are identical or similar to the instant registered trademarks, stacks, Rots, Trts, buses, clothing, etc.

2) Therefore, the respondent’s use of each of the marks of this case in the product of this case is likely to cause mistake and confusion as to its source. Thus, barring any other special circumstances, the respondent’s use of each of the marks of this case constitutes an infringement of trademark rights as to each of the trademarks

B. Whether the applicant is permitted

1) As to this, the respondent permitted the applicant to use each of the instant registered trademarks in clothing, etc. on the respondent, OOOOOOOO (hereinafter referred to as the "Respondent ○○○○○○○○○○○○○," and the respondent, the Respondent, ○○○, etc. (hereinafter referred to as the "Respondent"), was granted the right to use each of the instant registered trademarks from the Respondent ○○○○○○.

I asserts to the effect that this is true.

On October 19, 2012 between △△△△△△△△△ and Kim ○○○○○○○○, representing the applicant, and the records, the fact that the written agreement (No. 1 No. 2; hereinafter referred to as “instant agreement”) that grants the applicant exclusive right to use the trademark “AGTHA” in clothes, shoes, etc. to the Respondent ○○○○○○○○○○○○○○, and that grants the applicant exclusive right to reuse the trademark to a third party is proved.

However, the following circumstances, namely, ① the legitimate representative of the applicant, since June 30, 2012, shows that △△△△△△△△△ has no authority to prepare the instant agreement on behalf of the applicant, ② △△△△△△△△△△△△△ has no authority to resign from the applicant on July 25, 2006, ② △△△△△△△△△△△ has no authority to represent the applicant from the time of resignation of the applicant, ③ △△△△△△△△△△△△, it is difficult to conclude that △△△△△△△△△△△△ has the authority to sign the instant agreement on behalf of the applicant, ③ △△△△△△△△△△△△△△△△△△△△, which is a legitimate representative of the applicant, in accordance with the above △△△△△△△△△△△△, and there is no authority to sign the instant agreement on behalf of the applicant, and ④ it is doubtful that there was no authority to sign the instant agreement on behalf of the applicant.

2) In addition, the respondent asserts that on October 26, 2012, the respondent paid 50,000 UOO to the applicant through the credit, and that the applicant subsequently ratified the instant arrangement by receiving the price without any objection.

On the other hand, this case's letter of credit issuance (No. 2 and 13 No. 21) and foreign exchange transaction account statement (No. 21 No. 21) submitted by the respondent as evidence of the fact that Respondent OOOO paid 50,000 won to the applicant through the credit was submitted by the applicant through the credit, it is difficult to believe it as it is in light of its detailed contents and the general structure of L/C transaction, and there is no other evidence to prove the above argument of the respondent (Article 18 (2) of the Private International Act is the law of the country in which the agent's business place is located, and if it is impossible for the third party to know of it, the law of the country in which the agent actually performs the act. Thus, since the respondent claims that this case's letter of credit was prepared in France, whether the applicant bears the obligation to the Respondent ○○○○○ obligation under the agreement or not shall be determined differently by the law of the country in which the above act was actually conducted under the law of the French law.

C. Thus, in light of various circumstances indicated in the record, such as the fact that the respondent continues to sell the product of this case where each of the marks of this case was used, the applicant has proved that there is a preserved right to seek a prohibition against infringement of each of the instant trademarks against the respondent. Furthermore, in light of all other circumstances, such as the respondent's intention or attitude revealed at the stage of the examination of the instant provisional disposition, the necessity of an order to order an indirect compulsory execution against the respondent in preparation for the breach of duty of the respondent in order to secure effectiveness of the instant provisional disposition order (the indirect compulsory execution amount shall be determined as KRW 50,00 per time of the violation of the obligation described in paragraph (1) of this case, and all of the obligations with respect to the product of this case shall be deemed to have been committed once in total).

2) However, the Respondent has also filed an application with the Respondent for the cancellation of possession of, and an execution officer's order to keep, the products described in Paragraph 2 of this Article and their packaging paper, packing containers, advertising advertisements, but it is difficult to see that the Respondent's other place is specified to the extent that the execution is possible. Thus, the Respondent's application for this part is rejected.

In addition, the applicant has filed an application for a public disclosure order with respect to the entire decision on provisional disposition as stated in the Disposition Nos. 1 and 2, but it is difficult to view that it is a valid and appropriate method to ensure the effectiveness of the decision on provisional disposition by nature of the case, except for ordering the public disclosure of enforcement officers within the scope stated in Paragraph 3 of the Disposition No. 3.

3. Conclusion

Therefore, the application of this case is justified within the scope of the above recognition, and it is dismissed as it is without merit. It is so decided as per Disposition.

J. J. J. J. J. J. J.

Justices Lee Do-young et al.

Judge H. L. H. H. L. L. L. L.

A person shall be appointed.