Whether the act of manufacturing and selling psychotropic drugs of the same principal ingredients is likely to cause confusion as provided in Article 2 subparag. 1(a) of the Unfair Competition Prevention Act on the sole ground that it is not easy for consumers to distinguish the source when removing containers and packages because their principal ingredients are similar to their form and color.

Generally, medical and pharmaceutical workers such as doctors or pharmacists have little cases of confusion with drugs due to similarity between the shape and color of the drugs. In particular, if the two drugs involved are administered by pharmacists according to the prescriptions of doctors at almost all hospitals because they correspond to psychotropic drugs, and most general consumers cannot purchase them at a general pharmacy without doctors' prescriptions, so even if the form and color of the two drugs are similar, it cannot be concluded that they immediately cause confusion. Therefore, the purport of the above provision of the Act is not to prevent confusion and confusion between others under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act and to maintain a sound trade order by preventing confusion and confusion between customers or consumers' source of goods at the trading stage of the goods. Thus, if the container and package of the two drugs are so different that anyone can easily distinguish them from each other, it is difficult to see that the container and package of drugs are in the same color as those of patients who take medicine provided by prescription without doctors' own choice and are in danger of confusion.

Article 2 subparag. 1 (A) of the Unfair Competition Prevention Act

Attorney Park So-young, et al., Counsel for the defendant-appellant

Seoul High Court Order 93Ra96 Dated November 30, 1993

The reappeal is dismissed.

The grounds of reappeal are examined.

According to the reasoning of the order of the court below, since January 1, 1985, the applicant manufactured and sold psychotropic drugs called "IX" whose principal ingredient is "IX" from around January 1, 1985, and the above drugs are set in a single form, and are divided into white (0.25 grams) and red (0.5 grams) depending on the content of principal ingredients, and since the respondent has manufactured and sold the same "FIE" from around May 1987, the above drugs are similar to the above "IEM" type and color so that anyone can easily distinguish between the container and package, and most of the above drugs are similar to the above "IEMOEM" in this case's medical prescription that "IEMH" can not be seen as being confused with the drug's general drug's "IEMH" without any similarity with the drug's general doctor's prescription.

In light of the records, the decision of the court below is justified and there is no illegality affecting the decision of the court by misunderstanding the legal principles of the Unfair Competition Prevention Act. Since the lawsuit is likely to mislead patients using the "self-exploitation" after the administration of the "meatation" as the "self-exploitation", it is likely to cause confusion as prescribed in the above Article of the above Act. However, the purport of the above provision is to prevent confusion between traders and consumers in the transaction stage of the product and maintain sound trade order by preventing confusion between consumers and consumers' source of the product. Thus, it is difficult to conclude that there is a concern of confusion under the current Unfair Competition Prevention Act merely because the container and package of the two drugs differ easily from each other in the transaction stage.

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

Justices Park Jong-ho (Presiding Justice)