[1] Criteria for determining the similarity of “goods marks” under Article 2 subparag. 1(a) of the former Unfair Competition Prevention and Trade Secret Protection Act, and whether the same legal principle applies to determining the similarity of “business marks” under Article 2 subparag. 1(b) of the same Act (affirmative)

[2] The case affirming the judgment below which held that even if the defendants' product labels "Lipfeel", which are the product labels of functional health foods manufactured with red-combined extractions, are used in the same kind of product as "Lyprinol" or "Lyprinol", it is not identical or similar to each other since there is no concern that ordinary consumers or traders may mislead or confuse the product or business sources

[1] The similarity of a product mark under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) shall be determined by examining whether there is a possibility of misconception or confusion as to the source of the product, based on the perception that ordinary consumers or traders in the specific transactional situation feel the product mark, in light of the appearance, name, and concept of two product marks used for the same kind of product. This legal principle also applies to the judgment on the similarity of business marks under Article 2 subparagraph 1 (b) of the same Act.

[2] The case affirming the court below's decision that acquitted the defendants of violation of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) on the grounds that even if the defendants' product labels, "Lipfel", which are the product labels of functional health foods manufactured by red-combined extractions, are used in the same kind of product labels or "Lyprinol," it cannot be identical or similar since ordinary consumers or traders are unlikely to mislead or confuse the product origin of the product or business.

[1] Article 2 subparagraph 1 (a) and (b) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [2] Article 2 subparagraph 1 (a), (b), and (f) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007), Article 18 (3) 1, and Article 19 of the former Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 2003Do3906 Decided January 26, 2006 (Gong2006Sang, 356) Supreme Court Decision 2006Da10439 Decided April 12, 2007 (Gong2007Sang, 675) Supreme Court Decision 2007Do10914 Decided May 29, 2008

Defendant 1 and six others

Prosecutor

Law Firm Barun, Attorney Oi-type

Seoul Central District Court Decision 2008No714 Decided May 2, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on Defendant 1 and Defendant 2

The court below found the facts as stated in its reasoning based on its adopted evidence, and found that the above defendants manufactured and sold the "franz" product on the date and time stated in the facts charged of this case after the termination of the exclusive sales contract for the functional health foods (hereinafter "franz") manufactured and sold by the non-indicted 1 corporation using the francul extraction water between the non-indicted 1 corporation and the non-indicted 1 corporation, the court below reversed the judgment of the court of first instance which found the above defendants guilty on the grounds that the above defendants' act of unfair competition cannot be readily concluded that the above defendants committed an intentional act, and the "franz" constitutes the mark indicating the goods of this case, and it cannot be viewed as the "mark indicating the business" of the non-indicted 2 corporation, the victim, and it cannot be deemed that the above defendants manufactured and sold the goods or advertised the goods, or sold the goods with such a method or mark.

In light of the records, we affirm the above recognition and judgment of the court below as just, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal. In addition, as long as the court acquitted the above defendants on the above grounds, the issue of whether the "rifol", which is the product mark of this case, obtained a widely known knowledge within the country from the time of the time of the date of the entry in the facts charged does not affect the conclusion of the judgment. Thus, the argument in the ground

2. As to the grounds of appeal on Defendants 3, 4, 5, 6, and 7

A. Whether a product mark is similar under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007; hereinafter the "former Unfair Competition Prevention Act"), shall be determined by examining whether there is a possibility of misconception or confusion as to the source of the product based on the awareness that general consumers or traders in the specific transactional process experience about the product mark in terms of appearance, name, and concept (see, e.g., Supreme Court Decision 2003Do3906, Jan. 26, 2006). This legal principle applies to the determination of similarity of business marks under Article 2 subparagraph 1 (b) of the same Act (see, e.g., Supreme Court Decision 2007Do10914, May 29, 2008).

B. In light of the aforementioned legal principles and the records, “Lyprinol” or “Lipinol”, the product labels of Defendant 3, 4, and Defendant 5, and “Lipinel”, the product labels of Defendant 6, and Defendant 7, are recognized as one word for ordinary consumers or traders. Thus, in order to compare the similarity between the product labels of this case and the product marks of the above Defendants, the product labels of this case and the product marks of the above Defendants should not separate their component parts, and compare and observe their appearance, name, and concept as a whole. The product labels of this case and the product marks of the above Defendants of this case are letters in Korean or English, and their respective characters differ from each other. While the product signs of this case are referred to as “floatol”, the product signs of this case are referred to as “floatol”, the product signs of Defendant 3, etc., and the product signs of Defendant 6, etc. can not be referred to as “floring” as “floring,” and thus, they can not be used as “floil.”

Thus, even if the product labels of the above Defendants are used on the same product as the product labels of this case, they cannot be said to be identical or similar to one another, since there is no concern for ordinary consumers or traders to mislead or confuse the source of the product or business.

In the same purport, the lower court determined that “Lipfel” and “Lypinol” are not identical or similar to “Lypinol” or “Lypinol”, which are the product marks of this case, and also deemed that “Lypinol” or “Lypinol” merely correspond to the mark indicating the product of this case and cannot be deemed as the victim Non-Indicted 2 Company’s “mark indicating the business name.” The lower court determined that the above Defendants manufactured or sold each product listed in the facts charged, and did not make any publicity or mark misleading the quality, contents, etc. of the product of this case in the product or advertisement thereof, or sold the product with such a method or mark, and it was justifiable to have acquitted the Defendants of the facts charged, and there is no error in the misapprehension of legal principles as to the determination of similarity of the product or the business mark

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)