[1] Whether trademark infringement can be deemed where another person's registered trademark is used for a purpose other than indicating the source (negative), and the standard for determining whether the use of the pertinent mark constitutes "use of a trademark"

[2] The case holding that in case where a type of goods on which a mark identical to the registered trademark "MENTS" was printed and sold by a person who domestically sells goods after requesting the production of an order from a Chinese-designated garment manufacturing company, the mark was used as a mark of source of goods that form work clothes, not the mark of work clothes, but as a mark of source of goods that form work clothes, and the direct goods that are materials of work clothes constitute a violation of the Trademark Act since it constitutes goods identical or similar to the designated goods of the above registered trademark

[1] Articles 2(1)6 and 66(1)1 of the Trademark Act / [2] Articles 66(1)1 and 93 of the Trademark Act

[1] Supreme Court Decision 96Do1424 delivered on February 14, 1997 (Gong1997, 830) Supreme Court Decision 2002Do3445 delivered on April 11, 2003 (Gong2003Sang, 1218)

Defendant

Prosecutor

Law Firm Future Law Firm, Attorneys Lee Jae-chul et al.

Changwon District Court Decision 2008No1729 Decided December 18, 2008

The part of the lower judgment against the Trademark Act of April 8, 2008 is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. The remaining appeals are dismissed.

We examine the grounds of appeal.

1. As to the violation of the Trademark Act of October 17, 2007

If a registered trademark of another person is used on goods identical with or similar to the designated goods, it constitutes an act infringing another person's trademark right. However, even if it is used on another person's registered trademark, if it is not for the purpose of indicating the source that it is the essential function of the trademark and it cannot be perceived as the use of the trademark, it shall not be deemed an act infringing another person's trademark right (see Supreme Court Decision 96Do1424, Feb. 14, 1997). In order to determine whether it is used as a trademark, it shall be determined by considering the relation with the goods, the mode of using the mark (i.e., the location, size, etc. indicated on the goods), the widely and well-knownness of the registered trademark, and the intent and use of the user's intention and use, etc., in order to determine whether it is being used as a trademark identifying the goods (see Supreme Court Decision 2002Do3445, Apr. 11,

The court below found Defendant guilty of this part of the facts charged on the ground that, in light of the aforementioned legal principles and records, Defendant’s aforementioned mark cannot be deemed as having been used as an identification mark of work clothes, on the ground that Defendant’s use of the aforementioned mark in the process of producing work uniforms at a garment manufacturing company located in China, it appears that the part of the above work clothes trademark, the part of the above work clothes trademark, and the part of the knicker’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s k’s k’s k’s m.

2. As to the violation of the Trademark Act of April 8, 2008

The summary of this part of the facts charged is that on April 8, 2008, the Defendant infringed on the trademark right by attaching a type of paper on which the registered trademark indicated in attached Table 2 of the lower judgment was printed and sold in the Defendant’s work clothes clothes 1,500 punishment.

The lower court affirmed the first instance judgment that acquitted the Defendant of this part of the facts charged on the ground that the Defendant’s work clothes, which are the designated goods of the above registered trademark, are not similar to direct goods, direct goods, beer, tacker, and tacker (Class 24) and cannot be deemed as infringing the right to registered trademark.

However, we cannot agree with the above judgment of the court below.

The act of using a trademark identical or similar to another person's registered trademark on goods identical or similar to the designated goods is an infringement on another person's registered trademark right (Article 66 (1) 1 of the Trademark Act).

According to the first instance court and the evidence duly admitted and examined by the lower court, the Defendant was aware that the Defendant sold a paper printed on the same mark as the registered trademark “CENTS” as the type of the Defendant’s “CENTS” trademark as indicated in the attached Table 2 of the lower judgment. Thus, deeming the above mark as not using it as the source mark of work clothes, but as the source mark of work clothes, it is in conformity with the empirical rule to regard it as the Defendant as using it as the source mark of work clothes. Since textile materials, which are work clothes, constitute goods identical or similar to the designated goods of the above registered trademark, there is sufficient room to recognize that the Defendant infringed the right to registered trademark. The ground of

In conclusion, this part of the judgment of the court below is reversed as it erred by misapprehending the legal principles on the use of trademark, which affected the conclusion of the judgment.

3. Conclusion

Therefore, among the judgment below, the part against the Trademark Act of April 8, 2008 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)