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The judgment of the court below is reversed.
The defendant is not guilty, and the summary of the judgment of innocence is publicly notified.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) The Defendant established a company with the trade name of “C” and used the mark “C” in a common way, and there was no purpose of unfair competition. Thus, in using the above service mark, the Defendant does not have the effect of the service mark right of “C”, which is a D’s registered service mark pursuant to Article 51(1)1 of the Trademark Act. (2) There is no possibility of mistake or confusion between the Defendant’s service mark and the service mark registered with D, and thus, it is not identical or similar.
3) Since the Defendant was unaware of the fact that D had registered D as D’s service mark itself, there was no intention to use the said mark as D’s registered service mark infringing D’s right to use the registered service mark. 4) In light of the fact that D used D’s trade name for about two years and two months before D filed a complaint, and that D’s prosecutor was subject to a non-prosecution disposition by the prosecutor that was suspected of having no suspicion once before D filed a complaint, the Defendant was in violation of D’s right to use the registered service mark, even if the Defendant infringed D’s right to use the above registered service mark, it is not unlawful, or there is no possibility of expectation to suspend the use of the above mark.
B. In light of the criminal period, etc. of the prosecutor’s defendant, the punishment (a fine of KRW 500,000) set by the court below is too unfilled and unfair.
2. Summary of the facts charged and the judgment of the court below
A. The summary of the facts charged is that the Defendant is a person who is engaged in the wholesale and retail business of computers and peripheral devices with the trade name of Co., Ltd., and D applied for the trade name of “C” around July 18, 2007 to the Korean Intellectual Property Office in order to distinguish it from the service mark of others, and around October 13, 2008, “C including the retail business of electronic application equipment from the designated service business” was registered as service mark (registration number No. 0175222).
The Defendant from October 1, 201 to December 28, 2010.