[1] Requirements for the shape or shape of the product to constitute "a mark (mark) indicating another person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The case holding that the act of manufacturing and selling an air gas gun of almost the same form as the air gas gun in light of the fact that the form of air gas sprayers constitutes an act of unfair competition that causes confusion as to the origin of the goods

[1] Generally, the form or pattern of a product does not have a function to indicate the origin of the product, but is used as a means of giving a unique identity to the product. However, only when the form or pattern of a product is used as a means of giving the product a long-term continuous, exclusive, or exclusive use for a long time, or its differentiated characteristics by continuous propaganda advertisements are considerably individualized to a degree that it can lead to a certain product as a product of a certain source to traders or users, the product constitutes "marks (marks) indicating that it is another person's product."

[2] The case holding that the act of manufacturing and selling an air gas sprayers of almost the same form as the air gas sprayers in light of the fact that the form of air gas sprayers constitutes an act of unfair competition that causes confusion as to the origin of the goods

[1] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 98Da63674 delivered on February 23, 2001 (Gong2001Sang, 723), Supreme Court Decision 98Do2250 Delivered on April 10, 2001 (Gong2001Sang, 1167), Supreme Court Decision 99Do691 Delivered on September 14, 2001 (Gong2001Ha, 2287), Supreme Court Decision 200Da67839 Delivered on February 8, 2002 (Gong2002Sang, 657)

[Defendant-Appellant] Shaki Shoki Shos (Attorneys Cho Tae-tae et al., Counsel for defendant-appellant-appellant)

Defendant (Attorney Han-chul, Counsel for defendant-appellant)

Busan High Court Decision 2000Na13115 delivered on August 16, 2001

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

The grounds of appeal are examined.

1. Generally, the form or pattern of a product does not have a function to indicate the origin of the product, but is used as a means of giving a unique identity to the product. However, only where the form or pattern of a product has been used continuously, continuously, and exclusively for a long time, or its differentiated feature by continuous publicity advertisements, etc. is considerably individualized to the extent that it can lead to a certain product as a product of a certain source, it constitutes "a mark (mark) indicating that it is another person's product" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (see, e.g., Supreme Court Decisions 98Da63674, Feb. 23, 2001; 200Da67839, Feb. 8, 2002).

2. In full view of the admitted evidence, the court below determined that since around 1965, the Plaintiff’s production and sale of industrial gas sprayers, etc. in Japan commenced from a model name K-60, K-601-0 each industrial gas sprayers, the Plaintiff’s act of manufacturing and selling the same form of air gas sprayers as that of the Plaintiff’s respective air gas sprayers constitutes an unfair competition act that causes confusion as to the origin of the goods, since the Plaintiff’s aforementioned air gas sprayers were imported from around 1981 to be widely known in Korea as the Plaintiff’s products.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles, violation of the rules of evidence, and incomplete hearing.

All of the grounds of appeal cannot be accepted.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the defendant who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)