[1] Requirements for determining that an act of importing goods identical or similar to the designated goods bearing a trademark identical or similar to the domestic registered trademark does not constitute an infringement of the registered trademark right

[2] The case affirming the judgment below which held that in case where a foreign company that is a trademark right holder and a domestic exclusive licensee were indicted for violating the Trademark Act by importing slots indicating the trademark “K/SWS” registered in the Republic of Korea, the act of infringing the exclusive license of a domestic exclusive licensee on the ground that the source of the imported goods cannot be deemed to be substantially identical due to any legal or economic relationship or other circumstances

[1] Articles 2(1)6, 66(1), and 93 of the Trademark Act / [2] Articles 2(1)6, 55(3), 66(1), and 93 of the Trademark Act

[1] Supreme Court Decision 2002Da61965 decided Jun. 9, 2005 (Gong2005Ha, 1111), Supreme Court Decision 2006Da40423 decided Oct. 13, 2006 (Gong2006Ha, 1914)

Defendant

Defendant

Suwon District Court Decision 2009No344 Decided December 24, 2009

The appeal is dismissed.

The grounds of appeal are examined.

In order to ensure that an act of importing goods identical or similar to the designated goods on which a trademark is attached, which is identical or similar to the designated goods registered in Korea, does not constitute an infringement of the registered trademark right, the trademark should have been attached to the imported goods by the owner of the foreign trademark right or the legitimate user of the foreign trademark right, and the trademark attached to the imported goods can be seen as indicating the same origin as the registered trademark in Korea due to the legal or economic relationship between the owner of the foreign trademark right and the owner of the Korean trademark right, or other circumstances, and there should be no substantial difference in quality between the imported goods and the goods on which the owner of the Korean trademark has attached the registered trademark (see Supreme Court Decisions 2002Da61965, Jun. 9, 2005; 2006Da40423, Oct. 13, 2006).

According to the reasoning of the judgment below and the evidence duly examined by the court of first instance and the court below, "K/SWS" is a trademark registered with the Korean Intellectual Property Office using Switzerland, etc. with designated goods designated as such (hereinafter "the trademark of this case") and registered with the Korean Intellectual Property Office (hereinafter "the trademark of this case") with the exclusive license for the trademark of this case to be discharged from the Republic of Korea during the period from January 1, 2005 to December 31, 2009. The trademark of this case was registered with the exclusive license for the trademark of this case, after entering into a trademark use agreement with the K Switzerland, the trademark of this case was sold by the Busan U.S. U.S. head office from Jan. 1, 2005 by having the MIN industry use the trademark of this case with its head office located in Busan and after consultation with the representative director of the U.S. on the product of this case, the defendant, who was in collusion with the Korean Intellectual Property Association No. 3 of this case, had produced the trademark of this case in collusion No. 1.

In light of the above facts in light of the legal principles as seen earlier, although the trademark of this case, indicated in the slick, was attached by a foreign trademark holder or a legitimate user, the slick, separate from the case slick, was engaged in the act of using the trademark of this case as the source of the goods, such as making the design for the goods to be indicated by the trademark of this case at its own design team, manufacturing and selling the products to which the trademark of this case is indicated, and advertising and advertising the products. Thus, it cannot be said that there is any legal and economic relationship between the trademark holder of this case and the Korean exclusive licensee, or there is any other circumstance that the source of the slick in this case imported by the defendant is substantially identical with the domestic exclusive licensee.

Therefore, since the Defendant’s act of importing the instant slotfer is an act infringing on the exclusive license of the passengers, the lower court’s judgment is somewhat inappropriate in its reasoning, but its conclusion is just and acceptable.

In addition, “the administration of customs clearance for the protection of intellectual property rights” (wholly amended by the Korea Customs Service No. 2008-10, Feb. 26, 2008) is established in the name of an administrative agency, and cannot be seen as binding on the court’s judicial decision as to whether to infringe intellectual property rights, such as trademark rights, or whether to grant concurrent imports. However, it is only referenced in establishing a substantive legal standard for determining whether to infringe intellectual property rights. However, even according to the public notice given by the Korea Customs Service, if the products bearing the trademark of this case are manufactured and sold as seen earlier, the Defendant’s act of importing the sloter of this case is deemed as infringing on the exclusive license of the Plaintiff. Accordingly, the argument in the grounds of appeal that the lower court’s decision violated the above public notice is unacceptable

In addition, according to the records, the court below's rejection of the defendant's assertion that the court below did not recognize illegality on the grounds of the circumstances as stated in its judgment is justified, and there is no error of law such

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)