In a case where the Defendants were indicted for violating the Unfair Competition Prevention and Trade Secret Protection Act by using the business marks of Company A, which run the Internet portal site, the case affirming the judgment below which held that the Defendants were confused with Company A’s advertising business activities by using the business marks in expectation of the distinctiveness of Company A’s business marks on the Internet homepage as the business marks indicating the source of the Defendants’ advertising.

In a case where the Defendants were indicted for violating the Unfair Competition Prevention and Trade Secret Protection Act by using the business marks of Company A, which run the Internet portal site “NV”, the case affirming the judgment below that the Defendants used the Defendant’s business marks in the Internet portal site as a business mark indicating the source of the Defendant’s advertising, and caused the Defendants to misunderstand the Defendants’ advertisement as if they were provided by Company A, thereby causing them to be confused with Company A’s advertising business activities on the computer screen where the program was installed with “Dic Language Search Support Services” to be put into a part of the NA screen indicating the business marks of Company A, which are widely known in the Republic of Korea, and to appear in the form of a NA-up pop-up business without any access to the NNA initial screen, or making the advertisement provided by the Defendants appear in the form of a so-called NA P-up business without any source indication, and thus, the Defendants’ advertisement to be confused with Company A’s advertising business activities and the establishment of an advertising program through the process of installing the “Dic Language Search Support Services” program.

Article 2 subparagraph 1 (b) and Article 18 (3) 1 of the Unfair Competition Prevention and Trade Secret Protection Act

Defendant 1 and one other

Defendants

Law Firm Daba Law, Attorney Jeong Han-mo

Seoul Southern District Court Decision 2009No1968 decided September 30, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of the legal principles as to permission for changes in indictment

The prosecutor may add, delete, or modify the facts charged or the applicable provisions of Acts stated in the indictment with the permission of the court within the scope not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which form the basis of the facts charged, are the same in the basic point of view. In determining the identity of these basic facts, the defendant’s act and the social factual relations shall be based in mind, and normative elements shall also be taken into account (see Supreme Court Decision 2009Do9593, Jun. 24, 2010, etc.).

In light of the above legal principles and the records, since the primary facts charged before and after the amendment of the indictment against the Defendants are recognized to be identical in the basic point of view, the court below's decision that permitted the amendment of the indictment is just, and there is no error in the misapprehension of legal principles as to the amendment

2. As to the assertion of misapprehension of legal principles as to the possibility of confusion

The lower court acknowledged the facts as indicated in its reasoning based on its employed evidence, and determined that the Defendants used the advertisement to indicate the source of the Defendant’s advertisement on the computer screen on which the program “Dic Language Search Support Services” (hereinafter “the instant program”) was installed, which was widely known to the Republic of Korea, in the form of NAV screen indicated in the judgment of the lower court, and made the advertisement appear in the form of a pop-up business without the source indication as well as the connection to the NA screen marked with the instant business mark so that it can be displayed in the form of a so-called pop-up business without the source indication (hump advertising) and the instant business mark anticipated to indicate the source of the instant business mark on the NAV screen, thereby causing the Defendants to mislead the victim company as if the advertisement was provided by the victim.

Furthermore, in the process of establishing the instant program, the lower court determined that the instant program does not prevent confusion with the victim’s advertising business activities in light of the following: (a) it is difficult to clearly understand that the instant program has the aforementioned function in light of the content of the terms and conditions, even if it is possible to install the program even if the terms and conditions are not confirmed; and (b) if the program is installed through a security warning window of liquid X-type, such as the instant program, if it is difficult for the user to continuously use the desired service at the site without consideration as to whether any program is installed for the use of the service, because it is difficult for the user to continuously display the security warning window when it intends to use the desired service at the site.

In light of the records, we affirm the above judgment of the court below and there is no error in the misapprehension of legal principles as to the possibility of confusion under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

3. As to the assertion of misapprehension of legal principles as to intention of unfair competitive act

The lower court determined that the Defendants had the intent to engage in unfair competition under Article 2 subparag. 1(b) of the Unfair Competition Prevention Act, at least, in light of the fact that the instant program itself is premised on the premise that they are engaged in advertising activities using the screen of the Internet portal site, such as NAV, and the Defendants also engaged in advertising activities using the NAV screen on the premise that they are recruited and actually engaged in advertising activities using the NAV screen.

In light of the records, we affirm the above determination by the court below and there is no error in the misapprehension of legal principles as to the intention of unfair competitive acts.

4. Conclusion

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

Justices Park Il-young (Presiding Justice)