Defendant

Defendant

Kim Jong-Un

Law Firm Yang Constitutional Court Decision 201

Seoul Western District Court Decision 2010Ma45 Decided March 31, 2010

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

The figure trademark in the attached Form 2, which the defendant used, is not similar to the figure in the attached Form 1 of the "Trugian" as well as the figure in the attached Form 1, and is registered as the figure in the attached Form 2 of the defendant. In this regard, the defendant is not aware of the violation of the Trademark Act and the Unfair Competition Prevention Act, and there is no intention or illegality as to the defendant's violation of the Trademark Act and the figure in the attached Form 2, and there is no possibility of confusion with the general consumers because the bags and the "Trug" manufactured by the defendant are significantly different from the place and price of the sale. Nevertheless, the lower court erred by misapprehending the legal doctrine.

B. Unreasonable sentencing

Even if the defendant is found guilty of domestic affairs and the defendant, considering that the amount of damage is not high and the defendant disposes of all the goods, the punishment sentenced by the court below (one year and six months of imprisonment, three years of suspended execution) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of the legal principle of the defendant

1) Whether the defendant's figure trademarks in the attached Form 2 and "luorgians" in the attached Form 1 of the defendant's attached Form 2 are similar, confused possibility, distinctiveness or reputation

A) Determination of similarity of trademarks shall not be made in comparison with two trademarks per se, but shall be made from the perspective of whether there is a concern that traders or ordinary consumers representing two trademarks are likely to mislead or confuse the origin of goods with regard to different times and places. Two trademarks are similar in cases where there is concern for misconception or confusion as to the origin of goods in full view of the impression, memory, tobacco, etc. offered by traders or ordinary consumers by their appearance, name, concept, etc., and where two trademarks are likely to cause misconception or confusion as to the origin of goods in full.

B) In light of the above legal principles, each figure consisting of the Defendant’s two shapes of the figure in the annexed Form 2 shall be considered as “lugorgor” with diagrams similar to each figure in the annexed Form 1 of the Defendant’s “lugor”. While the figure in the annexed Form 1 of the “lugor” overlaps with “L” and “V,” the remaining three shapes centering on the shape figure in which the two shapes overlap with “L” and “V, maintaining a certain interval and size ratio, and continuously consisting of the shapes surrounding the surroundings, as shown in the attached Form 2 of the Defendant’s trademark also consists of “Z”, “L”, and “y”, the remaining diagrams consisting of two shapes centered on the shape that seem to overlap with each other, maintaining a certain interval and size ratio and continuous surrounding areas. Although there are differences in appearance between individual figures, the entire constituent structure, method of arrangement, and expression are very similar.

C) However, in the case of a trademark whose various figures are arranged regularly and repeatedly, it is general to distinguish the source of goods from the appearance of the goods by accurately observing and memorying the individual figures up to the detailed pages. In the case of the figure trademark in the attached Form 1 of the Defendant’s attached Form 2 and the Defendant’s “luorian” as well as the figure trademark in the attached Form 1 of the “luorian”, the characteristic of which is to give the highest impression to the traders or ordinary consumers and to cause memory and smoke to the general consumers, rather than the specific and detailed shapes of the individual figures, it is more likely to cause confusion and confusion about the source of goods by causing confusion and confusion about the origin of goods (see, e.g., Supreme Court Decision 2006Du2868, Feb. 26, 2007).

D) In addition, under the circumstances where the Defendant indicated the shape of the attached Form 2, which is very similar to the figure trademark in the attached Form 1 of the “luxurgian,” which is a well-known trademark, in most cases of the Defendant’s products, and ordinary consumers recognize the shape as the source of the products, the Defendant’s use of the attached Form 2 as follows: (a) the distinctiveness of the Defendant’s trademark in the attached Form 1 of the “luxurgian” is gradually weak due to the spread of images, advertising and publicity, customer inhales, etc. on the figure trademark in the attached Form 1; and (b) the Defendant’s product differs from the product in quality; and (c) the Defendant’s use of the figure in the attached Form 1, which is very similar to the figure trademark in the attached Form 1 of the attached Form 1 of the “luxgian” on the product, it is clear that there is no difference between the Defendant’s demand and the distribution route of the trademark in the attached Form 1.

2) Determination on the assertion of other legal principles

A) In light of the purpose and background of the trademark right holder’s application for and registration of the trademark, and the specific and individual circumstances leading to exercising the trademark right, where the exercise of the trademark right against the other party is deemed to have no value to be legally protected by law, such as going beyond the purpose and function of the trademark system aimed at maintaining the business reputation of the trademark user and protecting the interests of consumers, impairing the order of fair competition and commercial transactions, causing confusion among consumers, or violating the principle of trust and good faith in relation to the other party, the exercise of the trademark right shall not be permitted as it abused the right to the registered trademark even if it was in the external form of exercise of the right (Supreme Court Decision 2005Da67223 Decided January 25, 2007

B) On the back to the instant case and the following facts acknowledged by the evidence submitted by the prosecutor, i.e., ① the Defendant’s use of the Defendant’s registered trademark constitutes an abuse of the right to use the Defendant’s product in light of the following facts: (a) the Defendant registered the diagrams similar to the diagrams comprising the luor’s appearance after being punished for the crime of infringing the Defendant’s trademark; (b) the Defendant combines the figure trademarks in the attached Form 2 similar to the Defendant’s product’s “luor” trademark, rather than using them as the Defendant’s product’s product source indication; and (c) the Defendant’s product is deemed as a product of the “luorgian”; and (d) the Defendant’s product is deemed as having been aware of the Defendant’s intentional breach of the Trademark Act and the Unfair Competition Prevention Act, taking into account the following facts: (a) the Defendant’s product’s basic color as well as the shape and display of the individual figure; (b) the color of the individual pattern; and (c) the product form of the product.

3) Sub-decisions

Therefore, the defendant's assertion of legal principles is without merit.

B. Determination on the Defendant’s assertion of unreasonable sentencing

In light of the following, the Defendant’s act of infringing on the trademark right of the “luluor” was punished as a fine of KRW 15 million, and there was a record of criminal punishment for the two-year suspended execution in August. Nevertheless, the Defendant continued to commit the same kind of crime by infringing on the trademark right of the “luorgor”, and the Defendant’s age, character and behavior, environment, and motive and content of the instant crime, etc., it is difficult to deem that the lower court’s punishment is unreasonable, in full view of all other circumstances, including the Defendant’s age, character and behavior, and environment.

3. Conclusion

Therefore, the defendant's appeal is without merit and it is so dismissed under Article 364 (4) of the Criminal Procedure Act and it is so decided as per Disposition.

Judges Lee Jin-chul (Presiding Judge) and Kim Jong-Un