Cases
2019Do11688 Violation of the Trademark Act
Defendant
Defendant 1 and one other
Appellant
Defendants
Defense Counsel
Attorney Seo-won et al.
The judgment below
Seoul Central District Court Decision 2018No1383 Decided July 12, 2019
Imposition of Judgment
November 12, 2020
Text
All appeals are dismissed.
Reasons
The grounds of appeal are examined.
A person shall be appointed.
1. The original court found that the trademark used by the Defendants is identical or similar to the trademark (registration No. 1 omitted), the victim’s registered trademark (registration No. 1 omitted), (registration No. 2 omitted) (hereinafter referred to as “instant 1 and No. 2”) and the mark and the designated goods thereof, and found the Defendants guilty of the facts charged in the instant case.
Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of a crime of violating the Trademark Act due to trademark infringement,
No error affecting the judgment by omission, etc. shall be affected.
2. Where an act of infringement of trademark rights under Article 230 of the Trademark Act with respect to several registered trademarks continues, one crime is constituted by combining each of the registered trademarks (see Supreme Court Decision 2009Do10759, Jul. 14, 201). However, if several registered trademarks were to be infringed at the same time by using a similar trademark, each offense of violation of the Trademark Act is in a mutually competitive relationship.
According to the above legal principle, among the facts charged in this case, the crime of violating the Trademark Act due to the infringement of the first registered trademark of this case and the crime of violating the second registered trademark of this case is one comprehensive crime. Defendant 1 simultaneously infringed the first registered trademark of this case and the second registered trademark of this case due to the use of a similar trademark of this case. Thus, there is an ordinary concurrent crime under Article 40 of the Criminal Act among these comprehensive crimes. Therefore, the court below erred by deeming that the court below constituted a single crime by combining each act of infringing each registered trademark. However, even if punishment should be imposed for the most serious crime among the crimes of violating each trademark of this case under Article 40 of the Criminal Act, since there is no difference between the form of punishment determined by the court below and the scope of punishment, it is difficult to view that the court below’s error of evaluation of the number of crimes affected the conclusion of the judgment (see Supreme Court Decision 2002Do735, Feb. 28, 2003).
3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Judges
The presiding Justice shall mobilization by the presiding Justice
Justices Kim Jae-sik in charge
Justices Min Min-young
Justices Noh Tae-ok