[1] In cases of claiming damages due to infringement of trademark rights, etc. under Article 67(3) of the Trademark Act, the degree of assertion and certification as to the occurrence of damages, and in cases where a trademark right holder proves that he/she operates the same kind of business as the infringer, whether it is presumed that he/she actually suffered losses (affirmative in principle)

[2] Whether a person who infringed another person's trademark right is presumed to have been negligent in the infringement (affirmative), and matters to be asserted and proved in order to escape from presumption

[3] Whether the fault of the injured party should be taken into account in calculating the amount of damages caused by the infringement of trademark rights pursuant to Article 67(3) of the Trademark Act (affirmative)

[1] Article 67 (3) of the Trademark Act provides that a trademark right holder, etc. claims compensation for damages caused by infringement of a trademark right, etc. shall reduce his/her responsibility to assert and prove the damage, and does not purport to recognize the infringer's liability to compensate for damages even in cases where it is obvious that the damage has not occurred. However, in light of the purport of the provision, the degree of assertion and certification as to the occurrence of damages shall be deemed sufficient to assert and prove the possibility of the occurrence of the damage or the existence of the possibility thereof. Therefore, in cases where the trademark right holder proves that he/she carries on the same kind of business as the infringer, it shall be presumed that the trademark right holder actually sustained the business

[2] The existence and content of a trademark right and its contents can be known if they are published by the Trademark Gazette or the Trademark Register, and the general public also pay attention to the infringement of a trademark right in the field of the pertinent business. In addition, a person who has infringed a trademark right, utility model right, or design right of another person is presumed to have been negligent in the infringement (Article 130 of the Patent Act, Article 30 of the Utility Model Act, and Article 65(1) main text of the Design Protection Act) and there is no reasonable ground to deem otherwise. Thus, a person who has infringed a trademark right of another person is presumed to have been negligent in the infringement, and even if there are circumstances that justify the failure of another person to know the existence of the trademark right, or that the said person’s trademark is believed not to fall under the scope of the right of the registered trademark, the person who has infringed the trademark right should assert and prove that there is a circumstance to justify the fact that he/she was not negligent in

[3] If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, it shall be taken into account as a matter of course in determining the scope of compensation for damage by the perpetrator. In bridge the ratio of negligence between the two parties, the situation related to the tort shall be sufficiently considered in light of the purpose of the system of fair burden of damage. Even if the fact-finding or determination of the ratio is the exclusive authority of a fact-finding court, it shall not be considerably unreasonable in light of the principle of equity. This legal principle likewise applies to the case of calculating the amount of compensation for damage caused by a trademark infringement under

[1] Article 67(3) of the Trademark Act / [2] Article 130 of the Patent Act, Article 30 of the Utility Model Act, Article 65(1) of the Design Protection Act, Article 68 of the Trademark Act, Article 288 of the Civil Procedure Act / [3] Article 67(3) of the Trademark Act, Articles 396 and 763 of the Civil Act

[1] Supreme Court Decision 96Da43119 Decided September 12, 1997 (Gong1997Ha, 3083) Supreme Court Decision 2003Da62910 Decided July 22, 2004 / [3] Supreme Court Decision 2007Da76733 Decided March 11, 201 (Gong2010Sang, 715)

Seoul High Court Decision 201Na14487 decided May 1, 201

U.S.P. Co., Ltd. (Law Firm Jungwon, Attorney Gangnam-gu, Counsel for the plaintiff-appellant)

Daegu High Court Decision 2011Na6183 decided February 1, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on the possibility of confusion between trademarks

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the plaintiff's registered trademark (registration number omitted; hereinafter referred to as the "registered trademark of this case") composed of the plaintiff's registered trademark (registration number omitted; hereinafter referred to as the "registered trademark of this case") and the defendant's trademark "" used in the "metallic-related product, such as Aluminum," as designated goods, are similar to each other, since the name may cause misconception or confusion as to the origin of the product, and there is no error in the misapprehension of legal principles as to the possibility of confusion as alleged in the grounds of appeal.

2. As to the ground of appeal on damages

Article 67 (3) of the Trademark Act provides that the owner of a trademark right, etc. claims compensation for damages caused by the infringement of the trademark right, etc., to reduce his/her responsibility to assert and prove the damage, and does not purport to recognize the infringer’s liability to compensate for damages even in cases where it is obvious that the damage has not occurred. However, in light of the purport of the provision, the degree of assertion and certification as to the occurrence of damages shall be deemed sufficient to assert and prove the possibility of the occurrence of damage or the existence of the possibility thereof. Therefore, in cases where the owner of a trademark has proved that he/she carries on the same business as the infringer, it shall be deemed that he/she has actually suffered business damage due to the infringement of the trademark right unless there are special circumstances (see Supreme Court Decisions 96Da43119, Sept. 12, 1997; 203Da62910, Jul. 22, 2004, etc.).

According to the reasoning of the judgment below, the court below held that the plaintiff is liable for damages sustained by the plaintiff, since the defendant manufactured and sold products identical to the plaintiff using the defendant trademark similar to the registered trademark of this case and infringed the plaintiff's trademark right as to the registered trademark of this case by using the defendant trademark similar to the registered trademark of this case.

Examining the records in light of the above legal principles, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the occurrence of damages caused by trademark infringement, or the violation of

3. As to the Defendant’s ground of appeal on negligence

The existence and content of a trademark right and its contents can be known if they are published by the Trademark Gazette or the Trademark Register, etc. and the general public also exercise ordinary attention, and it cannot be deemed unfair to impose a duty of care for infringement of a trademark right on the pertinent business area on a business operator who uses a trademark for business purposes. Moreover, a person who infringes a trademark right, a utility model right, or a design right of another person is presumed to have been negligent in such infringement (Article 130 of the Patent Act, Article 30 of the Utility Model Act, and Article 65(1) main text of the Design Protection Act) and there is no reasonable ground to deem otherwise against a person who infringes a trademark right of another person. Thus, a person who infringes a trademark right of another person shall be presumed to have been negligent in such infringement. Nevertheless, in order to deem that a person who infringed a trademark right of another person was not negligent, there are circumstances that justify the existence of the trademark right, or that the trademark he/she uses,

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant's trademark right as to the defendant's trademark should be deemed to have been negligent as to the infringement of the plaintiff's trademark right as to the trademark of this case, and even if the defendant's trademark, "Alumins, metal windows, or metal windows" was registered on October 23, 2004, since the plaintiff requested a trial for invalidation of the trademark registration against the defendant's trademark on December 26, 2005 and the trial decision invalidating the registration becomes final and conclusive (the main sentence of Article 71 (3) of the Trademark Act), and even if the defendant believed that the defendant used the defendant's trademark based on his own trademark right at the time of infringement of the trademark right, such circumstance alone does not constitute a circumstance that makes it justified that the plaintiff's trademark right as to the trademark of this case does not extend to the defendant's trademark right.

Examining the records in light of the above legal principles, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the judgment of the infringer of the trademark right

4. As to the ground of appeal on offsetting negligence

If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, it shall be taken into account as a matter of course in determining the scope of compensation for damage by the perpetrator. In bridge the ratio of negligence between the two parties, the circumstances related to the tort shall be sufficiently taken into account in light of the purpose of the system of fair burden of damage. The fact-finding or determination of the ratio is a fact-finding authority, even if it is a fact-finding authority, it shall not be considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2007Da76733, Mar. 11, 2010). Such a legal principle likewise applies to cases where the amount of damage caused by the infringement

Therefore, it is wrong that the court below's decision cannot offset the damages caused by trademark infringement according to Article 67 (3) of the Trademark Act.

However, according to the records, the plaintiff filed a petition for a trial on invalidation of the registration of the defendant's trademark on December 26, 2005, which was commenced from October 23, 2004 to one year and two months after the registration of the defendant's trademark was registered and used, and accordingly, the plaintiff filed the lawsuit in this case on October 30, 2007, which was not yet passed since the decision on invalidation of the registration became final and conclusive as it was made on October 30, 2007. In light of the plaintiff's response against the defendant's trademark infringement and the degree of the exercise of his right, etc., it cannot be said that the plaintiff was negligent by impliedly aiding and abetting or aiding the use of the defendant's trademark. Thus, the court below's conclusion to reject the defendant's defense of offsetting the defendant's negligence is just, and therefore, it cannot be said that there was no

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)