Defendant 1 and 1

Man Chang-gu

Law Firm White, Attorneys Kim Jae-chul et al.

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Summary of the facts charged

A. around August 2006, Defendant 1 developed the program called a business link chain. When the users who installed the said program connects to the Internet portal site (www.naver.com) operated by the victim Nonindicted Co., Ltd. (hereinafter “victim Co., Ltd.), the advertisements stored in Defendant 2’s server operated by Defendant 1 are replaced by the advertisement on the Internet server of Defendant 2 Co., Ltd. or added to the vacant space.

From August 2006 to July 2007, Defendant 1 distributed and installed the above program to many unspecified Internet users through the Internet site operated by Defendant 2 corporation (www.○○○○○.co.kr). When users who installed the program have access to the NAV website, Defendant 1 used the NAV website, which is widely recognized victim company’s business mark, to cause confusion with the victim’s advertising service business activities by using the NAV website, which is the victim company’s business mark, by allowing the users who installed the program to display the advertisement stored in Defendant 2 corporation server on the NAV screen as if they were the advertising service provided by the victim company.

B. Defendant 2 Co., Ltd. committed an act of causing confusion with the victim’s advertising service business activities in relation to the business of Defendant 2 Co., Ltd., the representative director at the same time.

2. Facts of recognition;

According to evidence, the following facts can be acknowledged.

A. The injured party company is a company operating NAV (www.naver.com), which is the maximum domestic Internet portal site, and entered into an advertising contract with advertisers or advertising agency in the position of an advertising media company holding the above Internet portal site used as an advertising medium, and runs an advertisement in the above Internet portal site in the form of service deriving from the distribution, priority search results, etc., and receives advertising fees from advertisers, etc.

B. Defendant 1 developed an advertising business program using the Internet site called a business link (hereinafter “instant program”) and distributes it to Internet users via “www. ○○○○.co.kr”, which is the Internet site operated by Defendant 2 Company, while gaining profits by concluding an advertising contract with the advertiser and receiving advertising fees.

C. The Internet user’s Internet site (www. ○○○.co.k)’s interruption of Defendant 2’s Internet site (www)’s left-hand side of the Internet site (www. ○.○○.co.kr) caused the window of “Security Warning (Certification)” on the installation of the active program of this case, and ② if the Internet user characters the “execution” item of the said window, the window of “○○○○○○○○○○○○○○○”. ③ If the above window characters the “items”, the window of “○○○○○○○○” service providing the above window. The contents are the same as the introduction of the attached ○○○○○ service, and ④ In other words, if the above window characters the “establishment” item, the program of this case is installed on the user’s computer.

D. The purpose of the instant program is to ensure that, when an Internet user visits a specific site on the Internet (main portal site) using a computer in which the instant program is installed, the advertisement provided by Defendant 2 corporation directly appears on the said computer. Specifically, the method of displaying the advertisement is distinguishable from ① the method of directly searching the margin of the portal site and exposing the width advertising chosen by Defendant 2 corporation (hereinafter “click advertising method”); ② the method of covering the width advertising chosen by Defendant 2 corporation on the advertisement column provided by the portal site (hereinafter “alternative advertising method”); ③ the method of inserting the key advertising provided by Defendant 2 corporation between the lower end of the search site of the portal site and the key advertising provided by the portal site (hereinafter “click advertising method”).

E. In the case of the inserted advertising and alternative advertising method, if the Internet user visits the NAV website using the computer in which the instant program is installed, a separate new window exists that shows the distribution of the NAV website offered by Defendant 2, on the window of the NAV website, and the location and size of the NAV advertising is covered by or advertised in the margin of the NAV website. In the case of the NAV advertising method, if the Internet user inputs the NAV on the search window of the NAV website, it would have the HML document sent from the victim’s server to indicate the results of the search on the user’s computer screen. The instant program included the HML document in the above NAL document to change the above HML document by inserting it into the user’s computer screen, thereby indicating the source of the advertisement by Defendant 2, while it did not appear in the record of the program of this case.

F. Meanwhile, in the case of the inserted advertising method and the alternative advertising method, if the user inscribes a closed tag of the “x” sign on the individual advertisement, the advertisement is set up on the screen and the original advertisement is visible. In addition, if the user wishes to permanently delete the entire program of this case, it may be deleted from the camera, such as “the addition or deletion of the program” of the control board.

3. Determination

A. The issues of the instant case

(1) The prosecutor brought a public prosecution of this case on the premise that Defendant 1’s act of causing confusion with other person’s business facilities or activities by using the same as or similar to the mark indicating the name, trade name, emblem, or other business of another person widely known in the Republic of Korea to the extent that Defendant 1’s use of the victim’s business mark constitutes “an act of causing confusion with other person’s business facilities or activities by using the same as or similar to the mark indicating the other person’s business,” as provided in Article 2 subparag. 1(b) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767, Dec. 21, 2007; hereinafter “Unfair Competition Prevention Act”).

(2) As to this, Defendant 1 asserted to the effect that the NAV website does not correspond to the “business mark” under the Unfair Competition Prevention Act, and only the advertisement on the screen showing the NAV website cannot be deemed to have used the business mark, and that there is no room for “merger” as it sufficiently explained its function to users in the process of installing the instant program.

(3) Accordingly, the following is examined as to whether the NAV website constitutes business marks, and whether Defendant 1 caused confusion with the business entity by using the victim company’s business marks.

(b) Whether the Nene website falls under business marks;

(1) The term "domestic wide recognition" used in Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act refers to the so-called "level of low name" that is widely known to the general public other than the trading partners or customers within a certain area beyond the "level of land," and it is reasonable to interpret that the term "level of land, etc., widely known to the general public" means "level of land, etc., other than the trading partners or consumers." The issue of whether it is widely widely known in the Republic of Korea is the standard for the period of use, method, pattern, quantity of use, scope of business, etc., and whether it is objectively known to the general public in terms of the circumstances of the business and social norms. Meanwhile, the pattern, color, design, etc. indicated in the implements, etc. necessary for carrying on the business can not be deemed as having a function of expressing the source of business immediately, and it is difficult to see the characteristic used as a unique means of business, for a long time and exclusively or continuously, or continuously advertising advertisements, etc. with the character of its pattern, color, color, color, or design, etc.

(2) According to evidence, the victim company continues to advertise NAVs, which is the portal site it operates through various domestic media. Such advertisements appear with marks () and NAVVs, which represent NAVs. The above marks and NAVs have been used as marks indicating NAVs' website despite the change of design in the website over several times from 1999 to the present. The victim's marks and NAVs themselves have the function of indicating the victim company's business. According to these facts of recognition, it is reasonable to view that such discrimination has distinctiveness to the extent that it can be perceived as the victim's mark even for most general public.

(3) On the other hand, in the case of the NAV website search windows, mer new, and green and NA-type search windows, colors used in the signs, etc., the fact that the NAV is exposed to the general public through the advertisement of the NAV and that the same color and the search windows are continuously exposed to the general public even through the NAV website is acknowledged. However, the above color and the search windows cannot be seen as having function as indicating the source of business in itself, and it is difficult to NAV as well as those who are in contact with the NAV website, and most of the portal sites use the search windows in the same shape as that of the above search windows, and considering the fact that the portal sites other than the NAV are using the same colors, they cannot be seen as having reached the superior position of the general public as well as the trader and the general public.

(4) In addition, the part except the trademark of this case and the color, search windows, etc. that cannot be recognized as a business mark as described in paragraph (3) above is composed of ① the contents similar to other portal sites such as the following, the composition and specific arrangement of the contents are different, ② the organization and arrangement are not made to the extent that general Internet users' attention are led, but are periodically changed, ③ the characteristics are not indicated through the advertisement against NAV, ④ the general Internet users seem to be aware of the business source through the instant business mark clearly indicating the victim's business, ⑤ it cannot be viewed as a business mark in light of the fact that it is difficult to see that it has the function of indicating the business source of the victim's company.

C. Whether the business entity becomes confused with the business entity using the instant business mark

(1) An act of confusion with a business entity means any act that causes confusion with another person's business facilities or activities by using signs identical or similar to the name, trade name, trademark, or other signs indicating another person's business, which are practically widely known in the Republic of Korea, regardless of whether it is registered (see Supreme Court Decision 97Do322, Apr. 23, 199). The purpose of prohibiting confusion with a business entity under the Unfair Competition Prevention Act is to protect the owner of a business mark by regulating the reproduction of a chemical and formed credit in the business mark, thereby protecting the owner of the business mark, as well as protecting the interests of consumers in the selection of goods, and to form and maintain a fair competition order. Whether it constitutes confusion with another person's business should be determined by comprehensively taking into account the degree of well-known and distinctive character of the business mark, degree of similarity with signs, degree of similarity with signs, degree of use, similarity of business, similarity with business, and customer's bad faith (use degree) (see Supreme Court Decision 2006Do84596, Apr. 27, 2007).

(2) In light of the facts of this case, which can be recognized by evidence as seen earlier, the following circumstances are as to the function of the instant program, the contents of the Defendants’ business activities and their business effects, and the degree of use of the NAB website, i.e., ① the instant program’s user’s access to the domestic famous portal site, such as the victim’s company’s NAV server, shows some of the screen of the given portal site. It is merely that the Defendants posted several advertising using the instant program in the course of advertising, and it is difficult to see that Defendant 2 or the company posted the screen on its own. 2) Defendant 1 did not appear to have any use of the victim’s business mark that is identical or unrecognizable to Defendant 2’s use of the instant program’s business mark by misunderstanding Defendant 2 as the victim’s company, and thus, it is difficult to see that the Plaintiff’s act of using the victim’s business mark or its phone number is likely to interfere with the victim’s use of the instant advertising site.

D. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting the crime, it is judged not guilty under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the Defendants is publicly announced under Article 58(2)

[Attachment]

Judges Lee Jong-sk (Presiding Judge)