(영문) 서울중앙지방법원 2008.4.16.자 2008카합1060 결정

1. Subject to the condition that the applicant deposits 5 billion won as a guarantee for the respondent, or submits a payment guarantee entrustment contract contract document covering the above amount as the guaranteed amount. A. The respondent shall not use the trade name of 'Morab Securities Co., Ltd.'.

B. The respondent shall not use any mark listed in the attached Table 2 for the service business listed in the attached Table 1 list.

(c) Respondents using marks listed in the separate sheet No. 2 attached to the Respondents, name cards, and propaganda advertisements shall be occupied, and shall order the execution officer entrusted by the Claimant to keep them.

(d) The enforcement officer entrusted by the applicant shall give public notice of the purport of each of the above orders in an appropriate manner.

2. The applicant's remaining applications are dismissed.

3. Litigation costs shall be borne by the respondent.

Purport of application

Order 1 and Indirect Compulsory Performance

Reasons

1. Basic facts

According to the purport of the records and the whole examination, the following facts are substantiated.

A. The applicant is a securities company established on June 1, 1962, and has changed, registered, and used the trade name to 'Mod Securities Co., Ltd.' from June 5, 1986. In addition, a number of service marks including the mark 'Mod Securities' have been registered and used.

B. While the respondent was a securities company established on July 26, 1955 and used the trade name of "New Interest Securities Co., Ltd.", the respondent changed and registered the trade name on March 31, 2008 to "Mojer SUTR IBS" (hereinafter referred to as "HYIS") and together with "HYD MUTR IBS" or "Mojer IBS" as its business mark.

C. Meanwhile, the Modern Group established by the President of the Young-gu Honorary Council (hereinafter referred to as the "Modern Group") is 198.

11. The division of modern marine fire insurance groups was made in line with the Hyundai Department Store Group on April 199, 200, Hyundai Automobile Group on February 2, 2002, and Hyundai Heavy Industrial Group on the basis of its results, it was divided into Hyundai Group (nine companies, such as Hyundai Commercial Group, Hyundai Elevators, Hyundai Elevators, Hyundai Industrial Products, and Modern Securities), Hyundai Automobile Group (36 companies in Korea, such as Hyundai Motor Vehicles, Madern Motor Vehicles, Modern Women's Business, Modern Capital, and Modern Industrial Group (8 companies, such as Hyundai Heavy Industries, Hyundai Enterprise Finance, etc.), Hyundai Department Group, Hyundai Department Store Group, Hyundai Marine Fire Insurance Group, Hadices Integrated, and Mod Construction.

2. Issues of the instant case

Although the respondent and the applicant are separate companies and are not belonging to the same business group, they claim that general consumers of securities business mistake and confuse the respondent as the same company or its affiliated company and that the reputation and trust they stored in the applicant could be dilution by the respondent (Articles 22 and 23 of the Commercial Act), infringement of service mark rights (Articles 66 (1) 1 and 65 of the Trademark Act), infringement of unfair competition (Article 66 (1) 1 and 65 of the Trademark Act), unfair competition act (Article 2 subparagraph 1 (b) and Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act) are seeking a provisional disposition as stated in the purport of the application.

According to the above basic facts, the applicant’s trade name and service mark were registered, registered, and the applicant and the respondent are the same type of business. Furthermore, according to the records, business marks, such as the applicant’s trade name and service mark, are deemed to be well-known and well-known. Accordingly, the issue of this case is whether the applicant’s trade name and business mark used by the respondent are similar to the applicant’s trade name, registered service mark, and business mark.

3. Determination

A. Of the trade name or business mark of the respondent subject to comparison, the part "stock company" is forced to use under Article 19 of the Commercial Act as it indicates the type of the company, and the part "securities" also indicates the type of business, and its use is enforced under Article 62 (1) of the Securities and Exchange Act and Article 38-2 (1) of the Enforcement Decree of the same Act. Thus, it is obvious that these parts are not subject to comparison because they lack distinctiveness.

Next, the part "AB" or "IB" seems to be a weak partner of the Investment Bank or the Financial Investment Company, which means an investment bank or the Financial Investment Company, if the ordinary consumers of the securities business or the employees engaged in the relevant business, they can be aware of it. This part is merely an ordinary name of the investment business conducted by the securities company, which is not a subject of comparison because it is nothing more than an ordinary name of the investment business conducted by the securities company.

Therefore, among the respondent's trade name or business marks, the part that can be compared with the applicant's trade name, registered service mark, and business mark can remain the only part of "Modern tea," and just the part that can be compared with the applicant's trade name, registered service mark, and business mark will remain the only part of "Modern."

B. Whether ‘Modern' and ‘Modern tea' are similar in securities business

First, we examine whether the mark "Modern" can be divided into the part "Modern" and the part "j," and then whether the service mark is currently registered and registered with the company belonging to the modern group as the right holder, and such trade name and service mark are generally used in the trade name "Modern" and "Modern" and "Modern" are combined with the whole or distinctive part of the part referred to as the business type of the company in question, so it is not natural in the trade.

Therefore, the overall observation of the composition of the ‘Modern' mark and the decision of similarity with the ‘Modern' mark should be made. Although its appearance and name are somewhat different, the records show that the current status of division of the modern group is not widely known to general consumers in the securities business, and in light of this point, it is highly probable that the general consumers in the securities business are the same company, or the company using the ‘Modern' mark is the same company or a company having mutual relation. Accordingly, the two marks should be deemed similar.

C. Comprehensive determination

In full view of the above, the trade name, business mark, and business mark used by the respondent are similar to the applicant's registered trade name, registered service mark, and business mark. Accordingly, consumers of securities business are identical to the applicant (i.e., one stock company's trade name, i.e., one stock company, i., one securities company's name, i.e., one-B securities company's name, i., one-B securities company's trade mark's trade name and service mark', i.e., one-B securities company's trade name and service mark', i., one-B securities company's trade name and service mark', i.e., the applicant company's changing its trade name and service mark only into modern tea IB securities company's trade name and service mark', i.e., modern IB securities company's trade name and service mark's trade name, i., the applicant company's act of infringing the applicant's trade right (Article 22 of the Commercial Code).

In this regard, the respondent argues that it conforms to the empirical rule or sound reasoning that it is the co-ownership of the whole group within the present large group as intangible assets jointly formed by a large number of efforts and costs that belong to the present group for a long time, which should not be monopolyd by any individual company. However, the respondent's assertion that in this case, in the situation where an enterprise belonging to a certain affiliated group becomes separate from one other and has already acquired well-known and well-known marks by using the mark "Modern," it would be possible to use the same or similar mark including the above claim of the respondent even in the case where an enterprise belonging to another affiliated group enters the same or similar type of business in the same or similar group of business, and if it is possible to use the same or similar mark including the name "Modern," the reputation and trust which has already been accumulated by the enterprise which has already acquired well-known and well-known, might cause mistake and confusion among ordinary consumers or traders, the above argument of the respondent cannot be accepted.

Therefore, pursuant to Article 22 of the Commercial Act, Article 65 of the Trademark Act, and Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act, the applicant has the right to file an application for provisional disposition as stated in Paragraph (1) against the respondent, and in light of all the circumstances indicated in the record, such as the Respondent's mode of advertising and public relations activities, the necessity of preserving the above provisional disposition is also substantiated.

4. Conclusion

Therefore, the application of this case is justified within the scope stated in Paragraph (1) of this Article, and the rest of the application (the part on which indirect compulsory performance is sought against the breach of duty) is accepted as a condition to provide security, and where the respondent violates the above order, the applicant can seek indirect compulsory performance again through separate procedures, and it is not reasonable to recognize the need to issue an indirect compulsory performance order together at the present stage, and it is dismissed as it is without merit.