Clovapost Co., Ltd. (Law Firm Hh School, Attorney Jeong Sung-il, Counsel for the plaintiff-appellant)

Defendant 1 and 2 (Law Firm Shin & Shin, Attorneys Lee Young-chul et al., Counsel for the defendant-appellant)

December 21, 2007

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants shall pay to each plaintiff 150,000,000 won with 20% interest per annum from the day following the day of service of the complaint to the day of full payment.

1. Basic facts

The following facts do not conflict between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in the descriptions of Gap evidence Nos. 2, 3, 12-1 through 12, Gap evidence No. 14-1 through 12, Gap evidence No. 15-8 through 12, 18 through 21, Eul evidence No. 15-1, and Eul evidence No. 1:

A. The Plaintiff is a company that runs the business of selling mobile content, Internet content, etc. developed by the said company in cooperation with the domestic company (established on January 30, 2001). Defendant 1 served as the head of the Plaintiff’s overseas business team from August 31, 2001 to August 21, 2004 and was in charge of market research for export, excavation of overseas data, counseling and customer management, progress of export contracts and preparation of contracts.

나. 원고는 2004. 6.경 모바일게임 개발업체인 피고 주식회사 넥슨모바일(‘주식회사 엔텔리젼트’에서 상호변경됨, 이하 ‘피고 회사’라고 한다)과의 사이에 피고 회사의 모바일 게임을 원고가 유럽 시장에 판매하되(비독점적 영업권), 원고가 추천한 업체와 업무 진행시 피고 회사는 원고를 경유하여서만 해당 업체와 업무를 진행하여야 하고, 이 과정에서 알게 된 영업상의 비밀을 제3자에게 공개하지 않기로 하는 내용 등을 포함하는 전략적 사업제휴계약을 체결하였다.

C. Defendant 1-A in the Plaintiff Company, and Defendant 2 in the Defendant Company, respectively, and Defendant 2 served as the planning director of the Defendant Company from April 2004 to August 29, 2005.

D. On August 21, 2004, Defendant 1 retired from the Plaintiff Company, and immediately following the retirement, took part of the document files, etc. stored in the Plaintiff’s office’s computer that was used by the Plaintiff’s office to be copied to three CDs. Among them, each document listed in the attached list was included. However, the above Defendant entered the Defendant Company, and copied and stored the document files brought to the above from the Defendant Company to the Egypt that was paid by the Defendant Company.

E. Defendant 1 entered the Defendant Company around the 25th of the same month, and the term of employment contract between the Defendant Company and the Defendant Company was three months at the time, but the employment contract was determined after the expiration of the above probation period. By November 24 of the same year, Defendant 1 served as the head of the Defendant Company’s overseas business office, and China was in charge of exporting the Defendant Company’s mobile games to the Defendant Company at a corner.

2. The plaintiff's assertion

The plaintiff is the plaintiff's trade secret, each document in the separate sheet is the defendant's trade secret, and the defendant 1 moved to the defendant company by making a copy of the above document file stored in the plaintiff's computer while leaving his office as the defendant company, and tried to establish a direct transaction relationship with the foreign company which was affiliated with the plaintiff. The defendant company and the defendant 2 conspired with the defendant 1 to leave the defendant company with the plaintiff's trade secret and let the above defendant company move to the defendant company, and followed the defendant company to take charge of the same business as that of the plaintiff company. This constitutes "the act of using or disclosing trade secret acquired by unlawful means" or "the act of acquiring or disclosing the trade secret acquired without knowing or without knowing the fact that an act of improper acquisition occurred with respect to the trade secret" under Article 2 subparagraph 3 (b) of the Unfair Competition Prevention and Trade Secret Protection Act or "the act of using or disclosing the trade secret acquired by unlawful means" under Article 2 subparagraph 3 (b) of the same Act. In addition, the defendant company asserts that the above defendant 2's employer is liable for the above defendant

3. Determination

A. According to Article 2 subparagraph 2 of the Unfair Competition Prevention Act, trade secrets mean “the production method, sale method, and other technical or managerial information useful for business activities, which are not known publicly, have independent economic value, and are maintained as confidential by considerable effort.”

Therefore, in order to become a trade secret, ① is not known to the public, that is, the information should not be generally available to the person who is entitled to gain economic benefits through it, and ② is maintained as confidential by considerable effort; ② is objectively, the holder of the information should maintain and manage it as confidential; ③ is capable of having independent economic value and using it as confidential; ③ is capable of directly and indirectly competition over the competition with the person in competition with him, such as improving business efficiency or saving expenses due to the use of the information, and ④ is required to be technical or managerial information.

B. In the instant case, health class, each of the documents in the separate sheet claimed by the Plaintiff as trade secret include ① documents received from a third party, ② contracts or proposals prepared in the course of mediating transactions between domestic and foreign enterprises, ③ documents prepared for the purpose of sending them to a third party, such as the temporary suspension of business, ④ documents prepared for internal reporting purpose, and ④ documents prepared for the purpose of internal reporting, and the following documents are examined as to whether each of the above documents satisfies the requirements of trade secret.

(i)A document received from a third party;

Of the documents asserted as trade secrets by the Plaintiff, “MJS's Handphone-type game dispute” (Article 9 of the attached list), “game proposal provided by McVS company” (Article 12 of the attached list), “game manual provided by McV company” (Article 13 of the attached list), “WV game market report provided by McV company” (Article 14 of the attached list), “business plan provided by PMD company” (Article 15 of the attached list), “SWS market survey report provided by MMD company” (Article 18 of the attached list), “SPS market survey report provided by PMD company” (Article 20 of the attached list), “Localization of Handphone game provided by McV company in McV company” (Article 21 of the attached list), “Localization of Handphone game provided by McV company” (Article 24 of the attached list), and “Local No. 24 of the attached list” (attached Form 32 of the attached list) is provided by the Plaintiff from the Chinese public network.

However, Article 11 of the Unfair Competition Prevention Act provides that "any person who causes damage to the business interest of a person who possesses trade secrets due to infringement of trade secrets by intention or negligence shall be liable for such damage." Thus, in order to claim compensation for damages through infringement of trade secrets, the pertinent trade secrets shall be the owner of the trade secrets, and all the documents asserted by the plaintiff are merely documents prepared by a third party in connection with his own business and distributed to the same third party as the plaintiff, and thus, it cannot be viewed as the plaintiff's trade secrets unless there are special circumstances. Even though the plaintiff's secret agreement with the third party is likely to cause damage if the above documents are leaked to the outside, each document does not constitute the plaintiff's trade secrets, and it does not constitute the plaintiff's trade secrets, and it does not constitute the plaintiff's own competitor (the mobile content, Internet content development company, etc. to intermediate the sale of the products through cooperation with the above third party, the same shall apply hereinafter) or the plaintiff's economic value cannot be acknowledged as being independent from the plaintiff's business activities.

dics prepared to mediate or propose transactions between domestic and foreign enterprises;

원고가 영업비밀이라고 주장하는 문서 중 “중국 공중망사와의 핸드폰게임 수출계약서”(별지 목록 제7항), “엠크레스사의 EGG 비즈니스 모델”(별지 목록 제10항), “엠크레스사의 EG 비즈니스 모델”(별지 목록 제11항), “대만 인스리아사에 제공한 기술지원 계획서”(별지 목록 제16항), “상하이 젠텍에 제공한 엠쇽 프로젝트 요약 정보”(별지 목록 제17항), “중국 마구스사와 핸드폰 게임 수출 계약서”(별지 목록 제19항)는 원고가 국내 제휴업체와 해외 업체사이의 거래를 중개하는 과정에서 작성한 계약서 또는 제안서이고, “영국 에이엠에스사와의 협상용 계약서”(별지 목록 제8항)는 원고가 국내 제휴업체와 해외 업체사이의 거래를 중개하는 과정에서 해외 업체로부터 송부받은 계약서이다.

However, each of the above documents includes information on the products and markets which are ordinarily offered by domestic companies for sale or negotiation for sale to foreign companies, and sales conditions such as the amount of royalties subject to negotiation, license period, etc. The form or contents of these contracts are different from the Plaintiff's competitor's business, and thus, it cannot be found that there is any business usefulness for the Plaintiff. Thus, the evidence submitted by the Plaintiff alone cannot be readily concluded that each of the above documents is the Plaintiff's trade secret (In addition, as seen in the above documents, information about specific product information, sales conditions, etc. can not be viewed as the Plaintiff's business information, regardless of whether the documents fall under the business information of the domestic and foreign companies that become the parties to the transaction, as described in the above item (i) above, regardless of whether they fall under the business information of the domestic and foreign companies that have become the parties to the transaction. Accordingly, it is doubtful whether the above information has independent economic value of the Plaintiff, such as the Plaintiff.

Article 12(1) of the Act on the Protection of Civil and Fishery Products

㈎ 원고가 영업비밀이라고 주장하는 문서 중 “모바일 게임 사업제안서”(별지 목록 제1항)는 원고가 고객들에게 자신을 소개하기 위해 작성한 것으로서, 원고와 제휴관계에 있는 국내외 업체들에 대한 소개, 해외 진출 사례 및 그 계약 내용, 원고의 해외 시장별 진출 전략 등이 기재되어 있고, 문서의 매쪽 말미에 ‘Private ＆ Confidential’이라는 표시가 기재되어 있는바, 그 중 ① 원고와 제휴관계에 있는 국내외 업체들에 대한 소개 부분은 원고의 홈페이지(을가 제2, 3호증)에 이미 개시되어 있는 내용이어서 비밀성이 없고, ② 해외 진출 사례 및 그 계약 내용 부분에는 해외 판매계약이 성사된 사례에 대하여 계약 일자, 판매 수량, 로열티 등의 판매 조건, 예상 수익과 해당 해외 업체들이 지원하는 휴대전화 단말기의 종류(지원 handset)가 기재되어 있는데, 그 중 계약 일자, 판매 수량, 판매 조건은 위 ⑴, ⑵항에서 살펴본 바와 같은 이유로 원고에게 독립된 경제적 가치가 있는 경영상의 정보라고 할 수 없고, 해외 업체들이 지원하는 단말기의 종류에 대한 정보는 특별히 이를 취득하는데 상당한 비용이나 노력이 든다는 사정이 보이지 아니하여 독립된 경제적 가치를 가지는 정보라고 할 수 없으며, ③ 해외 시장별 진출 전략에 대한 부분은 중국, 북미, 유럽, 제3세계 시장으로 나누어 각 시장의 규모, 시장 가격, 사용되는 휴대전화 단말기 등의 단편적인 정보를 개괄한 것에 불과하여 위 정보가 경쟁자들에게 일반적으로 알려져 있지 않아 원고를 통하지 않고는 얻기 어렵다거나 이로써 경쟁자에 대해 경쟁상의 우위를 점할 수 있는 경제적 유용성을 가지는 것이라고 보기 어려우므로, 위 문서는 원고의 영업비밀에 해당하지 않는다고 할 것이다.

㈏ 또한, 원고가 영업비밀이라고 주장하는 문서 중 “엠크레스사에 대한 사업실행계획서”(별지 목록 제2항), “디엠디사와의 스크린 글래스에 대한 사업실행계획서”(별지 목록 제3항)는 원고가 제휴업체인 위 회사들을 위해 작성한 해외진출 마케팅계획에 관한 문서인바, 위 각 문서에는 원고의 해외 제휴업체에 대한 소개와 향후 해외진출을 위한 마케팅 계획이 개략적으로 표시되어 있을 뿐인데, 이는 원고의 홈페이지(을가 제2, 3호증)에 이미 개시되어 있는 내용이어서 비밀성이 없거나, 이로써 경쟁자에 대해 경쟁상의 우위를 점할 수 있는 경제적 유용성을 가지고 있다고 보기 어려우므로, 위 각 문서들은 원고의 영업비밀에 해당하지 않는다고 하겠다.

m. Documents prepared for the purpose of internal reporting by the plaintiff

Of the documents alleged by the plaintiff as trade secret, the "Status of Efforts' Process" (attached Form No. 4), "Counseling Report" (attached Form No. 5), and "S. Northbuk-do and Injury Travel Report" (attached Form No. 6) are documents prepared by the defendant 1 to report inside the course of consultation with the foreign company or the result of overseas business trip while he/she is in office in the plaintiff company. Each of the above documents is a document prepared by the defendant 1 to report inside the country, which indicates that the information is confidential, and there is no other circumstance that the plaintiff has made considerable efforts to keep it confidential, and it is difficult to see that the plaintiff has an independent economic value in light of the contents of each of the above documents. Thus, each of the above documents does not constitute the

C. Sub-committee

Therefore, the Plaintiff’s assertion that each document listed in the separate sheet is a trade secret of the Plaintiff is without merit without any further consideration as to the remainder of the Plaintiff’s assertion that the document indicated in the separate sheet is a trade secret of the Plaintiff (i.e., the Defendant Company, who retired from office by Defendant 1, as a mobile game developer, cannot be deemed to be in competition with the Plaintiff. Moreover, there is no evidence to acknowledge that Defendant 1’s act of acquiring and using each document listed in the separate sheet was in violation

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Yang Jae-young (Presiding Judge)