Defendant

Defendant

Efficacy

Attorney Ho-ho (Korean National Assembly)

Busan District Court Decision 2004 High Court Decision 6201 Delivered on June 9, 2005

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

The Defendant’s advertising phrase, when selling the instant “Clore”, has used the content of the patent application obtained a patent for invention of the Republic of Korea as it is by means of inter-functional improvement and geologic improvement, and even though the “Cloquerel” did not make consumers mistake or confuse as medicine with functional health foods, the lower judgment convicting the Defendant of the facts charged of the instant case by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination on the grounds for appeal

Article 2 subparag. 1 of the Food Sanitation Act excludes drugs from the beginning pursuant to Article 2 subparag. 1 of the same Act. Thus, even if a general food is recognized as food under the Food Sanitation Act, unless it is recognized as a medicine, if an expression that may cause confusion with a medicine is used in labeling or advertising the food, it would go beyond the scope as an indication or advertisement concerning the quality of the food, and thus, it would cause harm to the consumer’s sanitation. Thus, Article 11 of the Food Sanitation Act, Article 6(1)2 of the Enforcement Rule of the same Act, Article 6(1)2 of the same Act, and Article 6(1)2 of the same Enforcement Rule, are violated (see Supreme Court Decisions 2002Do2998, Feb. 26, 2002; 2004Do386, Feb. 17, 2005; 2004Do3636, Feb. 26, 2005).

According to the records, the defendant, while running the business of manufacturing and selling health foods (mutual omission) from November 11, 2003 to August 1, 2004, advertised "Cloquerel", which is a health support food manufactured and sold by him, on his own website, while running the business of manufacturing and selling health foods, can be acknowledged that the defendant's assertion that the defendant's use of the above 1-3-1-6-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-1-6-2-2-2-2-2-2-2-2-3-2-3-2-3-2-2-3-2-3-2-3-2-4-2-3-2-3-2-3-2-3-3-4-4-4-4-4-4-4-4-1-3-3-3-3-3-3-3-3-4-4-4-4-3-4-3-4-3-4-3-4-3-4-4-4-3-4-3-4-4-4-4-

3. Conclusion

Therefore, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jae-ap (Presiding Judge)