[1] Whether the right of publicity can be recognized, which is a right to exclusively and exclusively control the name, portrait, signature, etc. of a well-known person under our law (negative)

[2] Requirements for claiming damages on the ground that an artist, etc. suffered emotional distress by using his/her name and portrait without authority

[3] The case holding that in case where Gap et al., an artist Eul et al, sought damages against Eul et al. for the reason that Gap et al.'s right of publicity or right of right of right of right was infringed by using the KIKO search advertising service provided by Eul et al., which combines Gap et al.'s name and product name, etc. as the KIKO search advertising service, the right of publicity cannot be acknowledged, and the KIKO search advertising cannot be deemed as an unfair competition act under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] In the event that the name or portrait, etc. of a well-known person, such as a well-known, a person who acquired a unique reputation, social evaluation, and a Nomination, is attached to a product or used for a service business, the promotion of the sale of the product or the business activities of the service business is effective. Since the name, portrait, etc. of such well-known person is treated as an economic benefit or value and its commercial transaction is conducted, it is hard to explain or protect such personal right or existing copyright, which is exclusively used for one person such as name rights, portrait rights, and portrait rights, or legal principles on the Unfair Competition Prevention and Trade Secret Protection Act, it is hard to explain or protect such right. The rapid development of the entertainment, sports industry and advertising industry in Korea has led to the use of the well-known person's name or portrait, etc., thereby causing a lot of disputes, it is sufficiently acceptable to recognize the concept of a new right of publicity, which is the exclusive right of publicity.

However, Article 185 of the Civil Act provides, “No real right may be created at will other than that provided for by law or customary law,” declaring so-called a so-called real right legal principle. Since the mandatory provisions of the Real Rights Act are core, creation of a new kind of real right that is not recognized by law (sex law and customary law) is not allowed. However, the right of publicity as a property right does not have any grounds for law and customary law. Therefore, it is difficult to recognize the right of publicity, which is an exclusive property right similar to a real right, solely on the ground that it is necessary without the basis of the positive law such as law and treaty, or established customary law, etc. Therefore, it is difficult to recognize the right of publicity, which is an exclusive property right similar to a real right. The right of publicity should be established only when the legal grounds for specifically stipulating the requirements for establishment, transfer

[2] Since personal rights under the Constitution are guaranteed through general provisions, etc. of the Civil Act, if a person’s personal legal interests are deemed to have been unlawfully infringed upon by using his/her name without consent, an individual may claim compensation for emotional distress against a person who infringes on his/her personal legal interests. However, if the subject of personal legal interests is an artist, etc. (hereinafter “offender, etc.”), a general theory on personal legal interests should be somewhat modified. Since a person who selects an artist, etc. comprehensively permitted the disclosure of his/her name and portrait to the public prior to the public due to the nature of his/her occupation, the scope of personal interests is limited compared to the general public. Therefore, in order to claim compensation for damages on the ground that an artist, etc. suffers emotional distress by using his/her name and portrait without authority, method, mode, purpose, etc., it should be recognized that the said use has damaged or damaged the reputation, impression, or otherwise caused mental distress by using his/her name and portrait public relations.

[3] The case holding that in a case where Gap et al., who works as an artist, such as Gap et al., sought damages against Eul et al. for the reason that Gap et al.'s right of publicity or right of publicity was infringed by Gap et al.'s right of publicity by using the KIKO search advertising service provided by Eul et al., which provided the Internet portal site, the case held that Gap et al.'s right of publicity was not infringed by the right of publicity, which is the exclusive control of Gap et al.'s name or portrait, portrait, signature et al., or the exclusive control of Gap et al., and the KIKO search advertising did not constitute an unfair competition act under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act.

[1] Articles 185, 750, and 751 of the Civil Act / [2] Article 751 of the Civil Act, Article 10 of the Constitution / [3] Articles 185, 750, 751, and 760 of the Civil Act, Article 10 of the Constitution, Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 2001Da64165 decided Feb. 26, 2002 (Gong2002Sang, 804)

See Attached List of Plaintiffs (Law Firm Multilater, Attorneys Park Ho-min et al., Counsel for the plaintiff-appellant)

KS Communications Co., Ltd. (Law Firm Mapyeong, Attorneys Lee Woo-won, Counsel for the plaintiff-appellant)

May 22, 2014

1. The plaintiff 25's lawsuit shall be dismissed.

2. All of the plaintiffs' claims except the plaintiff 25 are dismissed.

3. Of the costs of lawsuit, the portion arising between the Plaintiff 25 and the Defendant is borne by Plaintiff 25-Law Firm Dadam, and the remainder between the Plaintiffs and the Defendant except Plaintiff 25 are borne by the remaining Plaintiffs, respectively.

The defendant shall not use the plaintiffs' names or sell keyboards using the plaintiffs' names without permission for the search advertising services sold by the defendant on the portal site of "NE". The defendant shall pay to the plaintiffs 10 million won each and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Plaintiffs are entrepreneurs who are engaged in activities, such as mercury, rain, etc., and the Defendant is a company that operates a NAT (www.N.com) as an Internet search portal site.

B. The Defendant provides a key search advertising service that allows an advertiser’s website address and advertising phrase that has purchased advertising services using the relevant keyboard from the Defendant to be posted on the top of the screen as a result of the search, and allows the people to connect the address or advertising phrase to the relevant site (hereinafter “key search advertising”).

C. The Defendant divided the screen that shows the result of the search on the NAE website into “business immediately,” “frist link,” “Span social link,” and “slphone gambling”; the remainder except “frist link” is directly kid search advertising, and the “frist link” shows the same search results as the result of the search by the following communication, which is affiliated with the following communication, and is posted on the top of the screen as the result of the search by the advertiser who paid a higher amount to a specific kid.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 13, 18, 22 and the purport of the whole pleadings

2. Determination on this safety defense

The defendant asserted that the lawsuit of this case was unlawful as it was filed by a person who did not have the right of attorney, since the defendant merely received a blanket delegation from the management company to which the plaintiffs belong, and without being delegated the right of attorney from the plaintiffs.

On the other hand, the existence of the attorney's power of attorney shall be subject to ex officio investigation by the court. In the event that the power of attorney is a private document, whether or not the court orders certification of the power of attorney belongs to the discretion of the court. However, if the other party is disputed and there is no obvious evidence to prove that the power of attorney is authentic on the records, the court shall investigate whether or not the power of attorney is defective, such as ordering certification of the power of attorney or otherwise delegating the power of attorney (see Supreme Court Decision 77Da2139, Feb. 14, 1978, etc.).

Therefore, in a case where a person who filed a lawsuit or an appeal as an attorney fails to prove his/her power of representation in spite of an order for authentication by the court, the court may dismiss such lawsuit or appeal on the ground that it is unlawful to have been filed by a person who has no power of attorney. In such a case, the litigation cost shall be borne by such attorney (Articles 108 and 107(2) of the Civil Procedure Act). The same applies to a case where such attorney expressed his/her intention of resignation to the court (see Supreme Court Order 97Ma1574, Sept. 22, 1997, etc.).

In full view of the data submitted by the Plaintiffs and the purport of the entire pleadings, all of the remaining Plaintiffs, except Plaintiff 25, are deemed to have delegated this case to Dao Law Firm. However, in the case of Plaintiff 25, the Defendant is disputing the instant lawsuit’s right of attorney on behalf of Plaintiff 25, and there is no evidence to acknowledge that Dao Law Firm was duly delegated the said right of attorney by the said Plaintiff. In addition, Plaintiff 25’s attorney cannot be said to be the Plaintiff 25, since Plaintiff Dao Law Firm, who was appointed after the resignation of Dao Law Firm, did not submit Plaintiff 25’

Therefore, since the lawsuit against the plaintiff 25 against the defendant was filed by a person who has no power of attorney, it is unlawful. The defendant's defense is justified within the above scope of recognition.

3. The parties' assertion

A. The plaintiffs' assertion except the plaintiff 25

1) Claim based on a tort under the Civil Act

The Defendant actively promoted to register the key search advertisement with the advertiser in order to obtain the benefit of the key search advertisement. Accordingly, the Defendant, together with the advertiser, used the names or examples of the rest of the plaintiffs except for Plaintiff 25 (hereinafter referred to as “the plaintiffs”) commercially, thereby infringing the Plaintiffs’ right of publicity or aiding and abetting the advertiser’s tort actively.

Preliminaryly, even if the right of publicity is not acknowledged, the advertiser infringed the plaintiffs' right to name by commercially using the plaintiffs' names, and the defendant conspiredd to infringe the advertiser's right to name through the KIKO search advertisement, or aided and abetting the advertiser's infringement. Therefore, the defendant is liable for the plaintiffs' mental damage.

Therefore, the defendant is not obliged to use the plaintiffs' names or sell the keyboard search advertisement without permission of the plaintiffs, and the defendant is obligated to pay KRW 10 million among the damages suffered by the plaintiffs pursuant to Articles 750, 751, and 760 of the Civil Code.

2) Claim based on a violation of the Unfair Competition Prevention and Trade Secret Protection Act

The Defendant, without permission, uses the names and portraits built by the Plaintiffs through considerable efforts and investments for the Defendant’s business against business ethics or fair competition order, thereby obtaining unfair profits by taking advantage of the Plaintiffs’ efforts and investments and infringing the right to use the Plaintiffs’ names, etc. commercially. Accordingly, this constitutes an unfair competition act under Article 2 subparag. 1(j) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

Therefore, the defendant is not obliged to use the plaintiffs' names or sell the keyboard search advertising advertisement without permission of the plaintiffs, and the defendant is obligated to pay 10 million won among the damages suffered by the plaintiffs.

B. Defendant’s assertion

The key search advertisement is an information search algorithm the same as the Internet search, and the defendant sells the screen area as a result of the search, and what kind of products are to be advertised by the advertiser. In other words, the key search advertisement including the plaintiffs' names is merely voluntarily selected by the advertiser, and the defendant does not encourage or conceal the key search advertisement including the plaintiffs' names in order to gain profits. Therefore, the defendant cannot prevent the registration of the key screen including the plaintiffs' names from being registered, and cannot be held liable for joint tort or aiding and abetting liability to the defendant.

In addition, the right of publicity cannot be acknowledged unless there is any express provision, and it cannot be deemed that the right of publicity or the right of personality has been infringed through the key search advertisement. The plaintiffs use large amount of sponsored goods after receiving a large amount of sponsored goods, and thus they allow the use of the right of name explicitly. In addition, the key search advertisement is within the limit of admission of the plaintiffs, who are public objects, and can be justified by the doctrine of fair use. Furthermore, Article 2(1) Item (j) of the Unfair Competition Prevention Act is effective from January 31, 2014, and it does not constitute a violation of the Unfair Competition Prevention Act because there is no proof that the defendant infringed the rights of the plaintiffs since the enforcement date.

In addition, in the case of KIKO search advertising, the Defendant had transmitted the search result from the next communication corporation (hereinafter “the following communication”), and thus, the Defendant is not liable for this part.

4. Determination

A. Judgment on the claim based on a tort under the Civil Act

1) Judgment on the main argument

This paper examines whether the right of publicity can be recognized, which is a right of exclusive control and exclusive control over the property value of names, portraits, signatures, etc. under our law.

In a case where the name or portrait of a well-known, such as a well-known, a person who acquired a unique reputation, social evaluation, or a Nomination, is attached to a product or used for a service business, the promotion of the sale of the product or the promotion of the business activities of the service business is effective. Since the name, portrait, etc. of such well-known person is treated as an economic benefit or value and is treated as a commercial transaction, it is difficult to explain or protect such personal right or existing copyright, which is exclusively used to one person such as name rights, portrait rights, or the legal principles on the Unfair Competition Prevention and Trade Secret Protection Act.

Therefore, one of the federal appellate courts of the United States recognizes the right to exclusively control the above property value as an independent property right in 1953, and since the protection of the right of publicity, many of the states of the United States and many scholars have been supported by the right of publicity. Although controversy exists, the right of publicity is not a property right but a personality right, so inheritance and transfer is possible. The right holder of the right of publicity or a person who succeeds to or takes over the right of publicity can seek not only damages against the infringer but also prohibition of infringement.

In Korea, since the rapid development of entertainment, sports industry, and advertising industry has led to the use of the name, portrait, etc. of a well-known person in advertising, there are many disputes arising therefrom, it is sufficiently acceptable to recognize the new concept of right of publicity as seen earlier in order to regulate it.

However, Article 185 of the Civil Act provides, “No real right may be created at will other than that provided for by law or customary law,” thereby declaring the so-called principle of real right law. Since the mandatory provisions of the Real Rights Act are the core of this Act, it is not allowed to create a new kind of real right that is not recognized by law (see, e.g., Supreme Court Decision 2001Da64165, Feb. 26, 2002). However, as a property right, the right of publicity has no grounds for the law of sexual intercourse and customary law.

Therefore, it is difficult to recognize the right of publicity, which is an exclusive property right similar to a real right, solely on the ground that there is a need to do so without any legal basis, such as law, treaty, etc., and only a legal basis that specifically prescribes the requirements for establishing the right of publicity, transfer and inheritance, object and duration of protection, remedy in the event of infringement, etc. can be acknowledged as claimed by the plaintiffs.

Therefore, this part of the plaintiffs' assertion that is premised on the right of publicity is without merit.

2) Determination on the conjunctive assertion

A) Whether to recognize and limit personal rights

Article 10 of the Constitution provides that “All citizens shall be dignity and value as human beings and shall have the right to pursue happiness. The State shall have the duty to confirm and guarantee the fundamental human rights of individuals.” The essence of human beings and the inherent value of individuals, which can be the ultimate purpose of guaranteeing all fundamental rights (basic ideology) and the right to pursue happiness (see Constitutional Court en banc Order 89Hun-Ma82, Sept. 10, 1990). Generally, the term “personal rights” means the right to enjoy personal benefits, i.e., life, body, health, reputation, reputation, name, portrait, portrait, privacy, etc., which cannot be separated from the subject of rights, i.e., the right to enjoy personal rights, i., life, body, reputation, portrait, portrait, portrait, and freedom of privacy. In addition, since a person’s name, portrait, etc. is a personal symbol, the relevant individual’s personal rights shall not be used without permission as personal rights.

The fundamental rights under the Constitution are primarily a defensive right to protect an individual’s free sphere from a violation of public power, on the other hand, embodying the objective value order, which is the basic decision of the Constitution, and affect all legal areas including private law, so legal relations between private persons shall also be governed in compliance with the provisions on fundamental rights under the Constitution: Provided, That fundamental rights provisions, except for the exceptional cases directly applicable to private law relations by nature, form the contents of Articles 2, 103, 750, and 751 of the Civil Act, which provide for the general principles of private law, and indirectly affect private law relations (see Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010).

Therefore, the right of personality under the Constitution is also guaranteed through the general provisions of the Civil Act. Therefore, if a person uses his/her name without his/her consent and it can be deemed that his/her personal legal interests were unlawfully infringed, the person can claim compensation for mental suffering against the person who infringes his/her personal legal interests.

However, the general theory on personal legal interests should be somewhat modified in cases where the subject of personal legal interests is good, a person who is an artist, a student, a professional sports player, etc. (hereinafter “offender, etc.”). Since a person who selects an artist, etc. comprehensively permitted the disclosure of his/her name and portraits in front of the public due to the nature of his/her occupation, the scope of protection of personal benefits is limited compared to the general public. Therefore, in order to claim damages for the reason that an artist, etc. suffered emotional distress by using his/her name and portraits without authority, the said scope of protection of personal benefits should be limited compared to the general public. Therefore, there should be special circumstances where an artist, etc. damages or lowers the evaluation, reputation, and impression of the artist, etc., in light of the method, mode, purpose, etc. of use, or where his/her name and portraits

B) Whether the plaintiffs' right to name was infringed upon due to the KIKO search advertisement

We examine whether the plaintiffs' right to name has been infringed by using the phrase that combines the plaintiffs' names, product names, etc. through the defendant's key search advertisement.

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 3, 5, 22, and Eul evidence Nos. 1 through 4, and 8 through 13, the defendant did not recommend or separately sell the keyboard including the name of an artist, etc. in the KIKO search advertisement to the advertiser, but the advertiser decided to voluntarily register it with the defendant after considering the advertisement products, advertisement contents, advertisement method, etc. The defendant is not the key contents, but rather the key contents, but the price is set differently according to the items and location of the screen. In the case of the search advertisement containing the keyboard of the plaintiffs, it is recognized that the plaintiffs are subject to the search of the goods which the plaintiffs actually advertised or agreed upon.

In addition, ① People want to be aware of information, such as clothes, shoess, shoess, or clothes, etc. that celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celebling celeling celebling celebling celebling celebling celebling celebling celebleling celebleling celebleling celebleling, etc., worn by the same celebleblebling as the plaintiffs, etc. (e.g., ○○○, celeblebleble celebling celebleble celeblebling, etc.).

B. Determination on the claim based on the violation of the Unfair Competition Prevention Act

The defendant's KIKO search advertising constitutes an unfair competition act under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act.

(i) the relevant provisions;

The purpose of the Unfair Competition Prevention Act is to prevent unfair competition such as improper use of domestically well-known trademarks, trade names, etc., and to maintain sound trade order by preventing infringement of other persons’ trade secrets (Article 1). Article 2 Subparag. 1(j) of the Unfair Competition Prevention Act defines “any other acts of infringing other persons’ economic interests by using the outcomes, etc. achieved by considerable investment or effort from other persons for their own business without permission in a manner contrary to fair commercial practices or competition order” as one type of unfair trade practices.

2) Determination

In full view of the aforementioned facts, it is difficult to recognize that the algorithm of KIKO search advertising in a widely used business method on the Internet search portal site itself is a method contrary to fair commercial practices or competition order as stipulated in Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act. ② The algorithm of KIKO search advertising is chosen by itself by the operator of the shopping mall, the Defendant does not actively provide the key containing the Plaintiffs’ names. ③ It is difficult to recognize that the Defendant’s advertiser is not obliged to prohibit the Defendant from filing for all kinds of keys containing the Plaintiffs’ names or from filing for the registration of KIKOs in other products than products directly advertised by the Plaintiffs. ④ In addition to the Plaintiffs’ efforts and investments to obtain customer attraction, there is considerable portion of the Plaintiffs’ contribution to the Internet search portal site other than the Defendant’s algorithm, which is likely to infringe on the Defendant’s business order or sound competition in terms of the fact that it does not infringe on the Plaintiffs’ economic order or sound competition.

Therefore, this part of the plaintiffs' assertion is without reason to examine further.

5. Conclusion

Therefore, since the plaintiff 25's claim is illegal, it is dismissed, and all of the plaintiffs' claims except the plaintiff 25 are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] List of Plaintiffs: omitted

Judge Lee Jin-ju (Presiding Judge)