In a case where Gap broadcasting company, which broadcast the radio music program under the title “A”, sought prohibition of the use of title “A” against Eul corporation intending to hold a musical performance under the title “A”, the case holding that Eul company’s act of holding a public performance under the title “A” without Gap’s consent constitutes Article 2 subparag. 1(b) of the Unfair Competition Prevention and Trade Secret Protection Act.

In a case where Gap broadcasting company, which broadcast a music program under the title "A", sought prohibition of the use of title "A" against Eul corporation intending to hold a musical performance under the title "A", the case holding that in light of all circumstances, "A's act of using "A" constitutes a sign indicating the production and broadcasting business of Gap's radio broadcast program to the extent that "A's broadcasting business is considerably individualized to the extent that Gap's broadcasting business is connected to "A's production and broadcasting business" without Gap's consent, and is widely known domestically as a business mark at present, and where Eul company holds a public performance using the word "A's light" under subparagraph 1, it is likely for ordinary consumers to mislead Eul company's business as the business of Gap's broadcasting company, or mislead Eul company's business to believe that it is closely related to capital, organization, etc. between Eul and Eul broadcasting company without Gap's consent, constitutes an act of holding a public performance under the Unfair Competition Prevention Act or the Trade Secret Protection Act under Article 2 (1).

Articles 2 subparag. 1 (b) and 4(1) of the Unfair Competition Prevention and Trade Secret Protection Act

Cultural Broadcasting Co., Ltd. (Law Firm Squa, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na14477 decided May 1, 201

1. The debtor shall not use the phrase “by day or night” in subparagraph 1 of the attached list.

2. The debtor shall not advertise through newspapers, broadcasting, magazines, posters, placards, leaflets, leaflets, leaflets, or the Internet with the phrase "by day or night," as to the performance of paragraph 1 of the attached list.

3. If the obligor violates the order described in paragraphs 1 and 2 even after the lapse of two days from the date on which the obligor received the notice of the instant decision, the obligor shall pay to the obligee 10,000,000 won per day ( regardless of the frequency of the act of violation) of the order.

4. Paragraphs 1 through 3 are the condition that a creditor deposits 200,000,000 won as security for a debtor or submits a payment guaranty insurance policy with the above amount as the insured amount.

5. The remaining motion of the obligee is dismissed.

6. One-fourth of the costs of lawsuit shall be borne by the obligee, and the remainder by the obligor, respectively.

1. The debtor shall not use the phrase “by day or night” as referred to in subparagraph 1 of the attached list’s performance.

2. The debtor shall not display the phrase “by day or night” on the performance indicated in the attached list, and shall not advertise through newspapers, broadcasting, magazines, posters, placards, leaflets, leaflets, leaflets, and the Internet.

3. Where the obligor violates the provisions of paragraphs 1 and 2, the obligor shall pay to the obligee 30,000,000 won per day ( regardless of the frequency of the offence) which has been violated to the obligee.

1. Summary of grounds for application;

“A separate light or night is widely recognized in the Republic of Korea as a mark indicating the creditor’s business. Nevertheless, without the creditor’s consent, the debtor’s act of holding each performance (hereinafter “debtor’s performance”) listed in the separate sheet under subparagraph 1(b), (c), and (j) of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”), constitutes an act of unfair competition stipulated in subparagraph 1(b), (c), and (j) of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act, and thus, the debtor seeks provisional disposition as described in the purport of the application.

2. Determination on the application under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act

(a) Determination as to whether “A separate light” is widely known in Korea as a creditor’s business mark;

1) Unless there exist special circumstances, the title of a broadcast program is merely a title indicating the content of a creative production, and it is difficult to deem that the broadcast program itself has the function of indicating the source of goods or business. However, given the specific and individual circumstances, such as the period and frequency of broadcast program using the title, the scope and scale of viewers, the degree of advertisement and publicity, and the mode of actual use of the title, it is difficult to deem that the title of the broadcast program is considerably individualized to the extent that the title of the broadcast program can be affected by the business of producing and broadcasting the broadcast program of a specific person to customers or users (see, e.g., Supreme Court Decisions 2005Da6723, Jan. 25, 2007; 2005Da6723, Jan. 25, 2007; 2012Da3575, Jan. 29, 2015).

2) In full view of the following circumstances acknowledged by the purport of the entire records and examination based on the foregoing legal doctrine, “A separate light at night” constitutes a mark indicating the creditor’s radio broadcast program production and broadcasting business, and even at present, it seems that the creditor’s business mark is widely known in the Republic of Korea as the creditor’s business mark.

① From March 17, 1969 to April 47, 1969, creditors broadcast a radio music program (hereinafter “creditor’s broadcast program”) under the title “by day and night” as “by day and night”. The period and frequency of broadcast reach a considerable level.

② A creditor’s broadcast program is a radio broadcast program that has been broadcast nationwide, consisting of well-known persons, such as early South Korea, completion, doublebook, doublebook, material, blank, etc. In particular, from 1985 to 1996, the creditor maintained the listen rate of 20% higher at the time when he/she reaches the age of dual language. The creditor’s broadcast program “the program left on the most memory among the radio programs in Korea” of the survey of a gallon of Korea.

③ A creditor’s broadcast program is associated with the popular culture in the 1980-190s, and appeared as a program with the symbol of culture in a large number of media. From November 6, 2015 to January 16, 2016, “Stona 1988” broadcast programs aired by TVN broadcast companies were also appearing in the Darma, “Stona 1988” broadcast programs, as of January 6, 2015, when the hosts sent a letter to the creditor’s broadcast program or hosted by the creditor’s broadcast program. The said Darma was a large number of references to the creditor’s broadcast programs.

B. Determination on similarity and possibility of confusion

1) The issue of “similarness of a business mark” under Article 2 subparag. 1(b) of the Unfair Competition Prevention Act shall be determined on the basis of whether a general consumer or a trader in a specific transaction room is likely to mislead or confuse the source of business by observing two business marks used for the same kind of business in terms of appearance, name, and concept, etc. In addition, the term “act of causing confusion with another person’s business facilities or activities” includes not only cases where a business mark itself is mistaken for being identical, but also cases where a general consumer or a trader is believed to have a close relationship with capital, organization, etc. between users of a mark identical or similar to another person’s business mark widely known in the Republic of Korea and using a mark identical or similar to that of another person’s business mark, but also cases where such act constitutes an act of causing confusion with another person’s business mark should be determined on the basis of a comprehensive consideration of the well-knownness of business mark, degree of distinctiveness, degree of similarity, degree of similarity of marks, business status, overlap of customer floor, and existence of a malicious (use).

2) In full view of the following circumstances, based on the foregoing legal doctrine, in a case where the obligor holds a public performance by using the phrase “a separate light or night,” under subparagraph 1, the obligor is likely to mislead general consumers as the obligee’s business, or to believe that general consumers are closely related to capital, organization, etc. between the obligor and the obligee.

(1) The title "by day and night," which is used by a debtor in relation to a performance of a debtor, is completely the same as "by night," which is the business mark for the production and broadcasting business of the creditor's radio broadcast program.

② In relation to the obligee’s broadcast program, the obligee continued to hold a large number of performances directly using the mark “by night Jams”, “a separate light or an open broadcast at night,” such as “a separate light or an open broadcast at night,” and the obligee produced and performed the program broadcasted by the obligee, such as “spawn,” and “spawn,” in his/her musical name.

③ The performance of a performance by a debtor is a musical figure consisting of several creatives. Musics held in the performance of a debtor are composed of 80 to 90s, which have prevailed in the 80s. The contents of which are broadcast programs of creditors, and which have achieved encouragement, are all created by the class of university or college. The performance planning proposal by a debtor is written in the following: “At the beginning of a 7080 cultural axis among a large radio program, it is written in the form of a 7080 cultural axis, and the name of which continues to be sound even at the night.” In addition, the list by a debtor is written in the phrase “809-day radio program”, and the phrase “the lighting materials” by a debtor are included in the list of a public performance, “the lighting materials of a large amount of a public performance.”

④ In light of the fact that the obligor first requested the obligee to jointly hold a public performance, and the organizer of the public performance promoted, the obligor also intended to use the term “by day and night” as an ordinary obligee’s broadcast program with the knowledge that it was used by the obligor as an ordinary obligee’s broadcast program.

3. Determination on the right to be preserved and the necessity of preservation

A. As seen earlier, the obligor’s act of holding a public performance under the name of the obligor using the phrase “by day and night” without the obligee’s consent constitutes Article 2 subparag. 1(b) of the Unfair Competition Prevention Act, and the obligee has the right to seek a prohibition against the obligor from using the phrase “by day and night” under Article 4(1) of the Unfair Competition Prevention Act as to the obligor under Article 4(1)(b) of the Unfair Competition Prevention Act (see, e.g., Supreme Court Decision 2 subparag. 1(c) and (j) of the obligee’s Unfair Competition Prevention Act, insofar as the obligor has received the assertion based on Article 2 subparag. 1(b) of the Unfair Competition Prevention Act.

The obligor asserts to the effect that Article 4(1) of the Unfair Competition Prevention Act does not apply to this case under the Trademark Act, since the obligor applied for a public performance planning business, musical production business, etc. as a designated service business with respect to subparagraph 5 of “A separate light or night.” As such, the obligor’s assertion that “A separate light or night” was registered as a trademark on August 2, 2013 under the same Act. However, if the obligor acquires a trademark in the form of a trademark for the purpose of gaining profits by using the same and similar trademark as that of another person’s trademark widely recognized in the Republic of Korea, not for the purpose of distinguishing the goods of another person, but for the purpose of causing confusion with the goods of another person, the obligee’s application for the registration of the trademark itself is for unfair competition, and even if it had already been abused or abused as a legitimate exercise of rights under the Trademark Act, it cannot be deemed that the obligee’s registration of the above trademark was excluded from the application of Article 15(1) of the Unfair Competition Prevention Act.

B. Furthermore, in light of various circumstances explained by the overall purport of the records and examination, such as the fact that “A separate light or night is not a creditor’s business mark,” and the obligor’s performance is actively publicized, and the obligor’s performance is expected to be conducted from May 7, 2016 to May 15, 2016, and thus, it is apparent that the obligor’s performance will be terminated before the judgment becomes final and conclusive, the obligee’s credit, image or reputation decline, etc., which may arise from the obligor’s unfair competitive act is impossible or difficult to recover, and the obligor’s claim for damages after the fact is difficult to prove the amount of damages. Therefore, in light of various circumstances explained by the whole purport of the records and examination, it is deemed that preventive measures are necessary to effectively remedy the obligor’s damage, the need to order a provisional disposition as indicated in paragraphs (1) and (2) and (2) and the need to enforce the provisional disposition as indirect compulsory enforcement (However, the amount of indirect compulsory enforcement should be determined as KRW 10,000,000).

C. Meanwhile, in addition to the performance of the obligor, the obligee sought prohibition of the use of the title and advertisement as well as the performance indicated in Paragraph 2 of the attached list. However, it is difficult to deem that the performance indicated in Paragraph 2 of the attached list is specified to the extent that it is possible to execute the performance. Moreover, it is difficult to deem that the obligor has performed or is likely to perform the performance as indicated in Paragraph 2 of the attached list in addition to the performance of the obligor

4. Conclusion

Therefore, the application of this case is justified within the scope of the above recognition, and it is accepted as a condition for the provision of security, and the remaining application is dismissed as it is without merit. It is so decided as

[Attachment]

Judges Lee Jong-chul (Presiding Judge)