Requirements to be protected as "any other mark indicating other person's goods" as provided for in Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act.

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

[Plaintiff-Appellant] Plaintiff 2006Do1157 decided July 13, 2007 (Gong2007Ha, 130)

Defendant 1 and two others

Prosecutor

Incheon District Court Decision 2010No456 decided June 10, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The form of a product shall be allowed to be reproduced and produced in principle unless it is protected by a design right or patent right. However, where the form of a product obtains and acquires the function of indicating origin of the product in the second place, it shall be protected under the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) as it constitutes “a mark indicating other person’s goods” under Article 2 subparag. 1(a) of the same Act. In this case, in order to obtain well-knownness with the function of indicating origin, the form of the product must have a unique design feature that strongly appeals the consumer’s sense, compared with other similar goods, the form of the product must have a distinctive character to the extent that ordinary consumers can recognize that the product is a product of a particular business entity. Furthermore, as the form of the product has been used continuously, actively, or exclusively as a product of a particular business entity over a long-term period or its strong publicity and advertisement has been made, it shall be considerably 170% per annum 207 per annum 2707.

The lower court affirmed the first instance judgment that acquitted Defendant 1 on the ground that it is difficult to view that the form of △△○○○○ product among the products of Nonindicted Co., Ltd., the household manufacturing and sales chain, has unique design features that strongly appeal consumers’ sense compared to other household products, or that the general consumers have distinctiveness enough to recognize that the products are “○○○○○○” product on the sole basis of the evidence submitted by the prosecutor. Furthermore, it is difficult to recognize that the discriminatory features of the type of the △△△○ household product have reached a significantly differentiated level to the extent that they are the products of “○○○○○○○” among the products of Nonindicted Co., Ltd., Ltd., the lower court found Defendant 1 not guilty.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law by misunderstanding the legal principles on "other marks indicating other person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act.

2. Regarding ground of appeal No. 2

The court below affirmed the first instance judgment which acquitted the above Defendants on the violation of the Unfair Competition Prevention Act on the ground that the evidence submitted by the prosecutor alone could not be deemed as an act of "advertisement ○○○○○○○○" product, which was manufactured by the above Defendants through the advertisement, and there is no other evidence to acknowledge the fact that they sold the product. Even if the above Defendants explained the act of explanation as if they were the product of "○○○○○○○○" product in the course of selling the product, the above act of explanation cannot be deemed as an act of "advertisement" under Article 2 subparag. 1(f) of the Unfair Competition Prevention Act.

In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of the legal principle as to Article 2 subparagraph 1 (f) of the Unfair Competition Prevention Act, or in exceeding the bounds of the principle of free evaluation of evidence.

3. As to the third ground for appeal

A. As to the registered design with respect to the West

In light of the records, the implementation design in the holding of the court below as to the first registered design (registration No. 354651) and the second registered design (registration No. 354651) of this case, the name of which is the "Smiemi", are in a rectangular shape as a whole, and the upper part among which the two parts are composed of two parts, and are divided into two small parts, but they are common, but they fall under the basic or functional form of the Smimimimimi, or are already known prior to the application of the first registered design of this case.

Therefore, if both designs are prepared by evaluating the low importance of the above common points as above, the first registered design of this case was made by the national team of six parts, and two parts of the upper group are divided into two parts of the small regional team, while the above working design consists of five parts and only one part of the upper group is divided into two parts of the small regional group. While the lower part of the first registered design of this case is treated as a eros in the water-shaped shape, the lower part of the first registered design of this case is treated as a eros in the water-shaped shape, the above working design of this case is treated as a eros, but there is a difference in that the above working design is treated as a straight line. Thus, both designs are not similar because they make a different aesthetic sense from the whole.

B. As to the registered design as to the beds

In light of the records, the implementation design in the holding of the court below as to the second registered design (registration number No. 354647) and the bend of the instant product, the name of which is "influence", is formed at a certain interval of time from the head and the bend of the bend of the bend, and several materials are attached to the bend of the bend, the bend of the bend of the bend, and the bend of the bend of the second registered design of this case is installed with a snd of the bend of the bend. However, the head and the bend of the bend of the above design of this case, unlike the above implementation design, is treated as the bend of the bend of the bend and the upper part of the bend of the above implementation design of this case, which is treated as the bend of the bend and the detailed form, shape, and shape of the bend of the bend of the bend of the children's bend or functional form, and the price of the second registered design of this case is similar.

Rather, in light of the following: (a) the matrupe of the second registered design of this case consists of several parts consisting of the fluorous valleys; (b) the above working design consists of a board; (c) unlike the above working design, there are differences in both designs, such as the glusium in which the flus of leaves are installed; and (d) the part which is the most easily leading to the attention of the people who are able to attract the elusium in the transaction of the product, etc., unlike the above working design, the two designs are composed of the flusiums; and (e) the bottom of the 2 registered design of this case, unlike the above working design, there is a difference in both designs, such as the elus

C. Sub-decision

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the similarity of designs.

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 Lee In-bok (Presiding Justice)