[1] The meaning of "the place where a fact causing unjust enrichment has occurred" under Article 13 of the former Conflict of Laws Act (=the place where unjust enrichment has occurred)

[2] In a case where Gap, who had a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com", filed an application for dispute resolution with the Internet address dispute resolution agency for the transfer of the domain name to Eul and Eul filed for restitution of the domain name on the ground of unjust enrichment on the ground that Eul's right to its trademark "hp" composed of "hp" registered in the United States, was infringed upon while Eul registered and used the Internet domain name "hpweb.com", the case holding that the California law of the Republic of Korea is the governing law for the establishment and validity of the claim for restitution of unjust enrichment on the ground that the place where profits accrued from the transfer registration were located

[3] In a case where Gap, who had a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com", filed a petition for dispute resolution with the Internet address dispute resolution agency for the transfer of the domain name registration, and Gap filed a claim for return of the domain name on the grounds of unjust enrichment with the company Eul, the case holding that in order to determine whether unjust enrichment is established, Eul shall first have a substantive right to seek the prohibition of use of the domain name, and the law of law should be determined separately from unjust enrichment pursuant to the former provisions of the Conflict of Laws

[4] In a case where Gap, who has a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com", filed an application for dispute resolution with the Internet address dispute resolution agency for the suspension of use of the domain name on the ground that the trademark right of Eul, which was registered in the United States, was infringed on, and there was a substantive right to seek the suspension of use of the domain name from Eul company according to its decision, the case holding that Eul company has a substantive right to seek the prohibition of use of the domain name against Eul company, since the law applicable to the right to claim the prohibition of use of the domain name was the U.S. law, which is a tort under Article 13 of the former Conflict of Laws Act, and the infringement of rights was caused by the infringement of trademark right, which is an unlawful act in accordance with the United States law

[5] In a case where Gap, who had a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com", filed an application for dispute resolution with the Internet Address Dispute Resolution Agency for the transfer of the domain name, and Gap filed a claim for the return of the domain name on the ground of unjust enrichment with the company Eul on the ground of infringement of trademark rights on its trademark composed of "hp" and registered in the United States, the case holding that Gap cannot seek the return of the domain name on the ground of unjust enrichment under the law of the State of California

[1] According to Article 13 of the former Conflict of Laws (wholly amended by Act No. 6465 of Apr. 7, 2001), the establishment and effect of a claim arising from unjust enrichment in a conflict of laws case with foreign elements shall be governed by the law of the place where the cause of the unjust enrichment occurred. The place where the cause of the unjust enrichment occurred refers to the place where the unjust enrichment occurred.

[2] The case holding that, in case where Gap, a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com" and sought a return of the domain name on the ground of unjust enrichment on Eul's own, composed of "hp" and registered in the United States, during the registration and use of the domain name "hpweb", the State of California, the dispute resolution agency of the United States, is the State of California, and the State of California, the State of California, the headquarters of which is the State of California, is the place where the State of California, where the State of California, the State of America, is the place where the State of California, is the place where the State of California, its principal office, and the State of California, is the place where the State of California, which is the State of California, is the place where the State of California, has the right to the domain name and the right to the claim for unjust enrichment on the ground that Eul's transfer of the domain name was infringed

[3] In a case where Gap, who had a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com" and filed a claim for the return of the domain name on the ground of unjust enrichment with the company Eul, which had its headquarters in the United States, upon filing an application for dispute resolution with the Internet Address Dispute Resolution Agency for the infringement of rights to its trademark "hp" composed of "hp" registered in the United States, and the company Eul filed for the return of the domain name on the grounds of unjust enrichment with the company Eul, the case holding that if the company Eul at the time of the transfer registration of the domain name is not recognized as a substantive right to seek the prohibition of the use of the domain name, even if the transfer is made in accordance with the decision of the Dispute Resolution Agency, the transfer is likely to be constituted due to the lack of legal grounds, and thus, in order to determine whether the unjust enrichment of the company Eul is constituted, the law of the former Conflict of Laws Act (wholly amended by Act No. 6465 of Apr. 7, 2001) shall be determined separately from the governing law.

[4] In a case where Gap, who has a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com" in the United States, filed an application for dispute resolution with the Internet Address Dispute Resolution Agency for the transfer of the domain name registration in accordance with the decision, on the ground that the trademark right of the trademark "hp" registered in the United States was infringed, and there was a substantive right to seek the prohibition of the use of the domain name from Eul company, the case holding that Gap's right to claim the prohibition of use of the domain name constitutes a tort infringing Eul company's trademark right, on the ground that Gap's act of registering and using the domain name constitutes a tort of infringing Eul company's trademark right, the governing law is the place where the infringement occurred under Article 13 of the former Conflict of Laws Act (wholly amended by Act No. 6465 of Apr. 7, 201), namely, the infringement of trademark right was committed and the infringement of rights was infringed upon Gap's trademark right's right to seek the prohibition of use of the domain name, and thus Gap's right constitutes an unlawful act of 15 U.15 U.15.15.

[5] In a case where Gap, who had a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com", filed an application for dispute resolution with the Internet Address Dispute Resolution Agency for the transfer of the domain name, and Gap filed a claim for return of the domain name on the ground of unjust enrichment, the case holding that the registration and use of the domain name constitutes 15 U.S.C. § 1125(d)(1)(A) under the U.S. federal law and thus, Gap cannot file a claim for return of the domain name with Eul under the provisions of 15 U.S.C. § 1116(2)(D)(v), and that unjust enrichment under the California law of the U.S. is established in a case where Eul, which had its headquarters in the U.S., obtained unjust enrichment without proper legal grounds due to the loss of other parties, and that the transfer of the domain name cannot be deemed to have been made without reasonable legal grounds for the transfer of the domain name to Gap company under the California law.

[1] Article 13 of the former Conflict of Laws (wholly amended by Act No. 6465 of Apr. 7, 2001) (see Article 31 of the current Private International Act), Article 741 of the Civil Act / [2] Article 13 of the former Conflict of Laws (wholly amended by Act No. 6465 of Apr. 7, 2001) (see Article 31 of the current Private International Act), Article 741 of the Civil Act / [3] Article 13 of the former Conflict of Laws (wholly amended by Act No. 6465 of Apr. 7, 2001) (see Articles 31 and 32 of the current Private International Act), Articles 741 and 750 of the Civil Act / [4] Article 13 of the former Conflict of Laws (wholly amended by Act No. 6465 of Apr. 7, 200), Article 301 of the former Private International Act (wholly amended by Act) and Article 3741 of the current Private International Act)

Plaintiff (Attorney Lee Jae-soo, Counsel for plaintiff-appellee)

Bat-Pawd Co. (Attorney Han-il et al., Counsel for the defendant-appellant)

Supreme Court Decision 2002Da59788 Delivered on January 27, 2005

Supreme Court Decision 2005Da75071 Decided April 24, 2008

Seoul High Court Decision 2008Na43015 decided January 21, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. According to Article 13 of the former Conflict of Laws (wholly amended by Act No. 6465 of Apr. 7, 2001, hereinafter the same), the establishment and validity of a claim arising from unjust enrichment shall be governed by the law of the place where the cause of the occurrence occurred, and the place where the cause of unjust enrichment occurred refers to the place where the benefit occurred.

In light of the above legal principles and records, while the plaintiff, who had a domicile in the Republic of Korea, registered and used the Internet domain name "hpweb.com" (hereinafter "the domain name of this case"), on November 23, 1999, the defendant infringed upon the defendant's rights to his trademark "hp" (hereinafter "the trademark of this case") registered in the United States, and thus, the international Internet Address Management Organization (hereinafter "the trademark of this case")'s right to the trademark of this case was registered in the United States, and the defendant's registration of the domain name of this case is the governing law of the plaintiff's transfer of the plaintiff's rights to the plaintiff's domain name of this case from the plaintiff's establishment of the domain name of this case. The plaintiff's right to the plaintiff's right to the plaintiff's transfer of the domain name of this case is the governing law of the plaintiff's right to the plaintiff's claim of this case.

B. Meanwhile, if the right to seek the prohibition of the use of the domain name of this case is not acknowledged to the defendant at the time of the registration transfer of the domain name of this case, the above transfer is not a legal ground and there is room for establishing unjust enrichment for the defendant. Thus, in order to determine whether unjust enrichment of the defendant in this case is established, the determination of whether the defendant has a substantive right to seek the prohibition of the use of the domain name of this case should first be made. This is a matter separate from the establishment and validity of the plaintiff's claim for return of unjust enrichment, and therefore, the governing law separate from unjust enrichment should be set in accordance with the former Conflict of Laws Act.

However, since the plaintiff's right to prohibit the use of the above domain name of this case is the reason that the plaintiff's registration and use of the domain name of this case constitutes a tort infringing the defendant's trademark right against the trademark of this case registered in the U.S., the applicable law should be determined pursuant to Article 13 of the former Conflict of Laws Act. The place where the cause occurred is the U.S. where the plaintiff's registration and use of the domain name of this case constitutes an infringement on the defendant's trademark right and the result of infringement is the U.S. law.

C. Therefore, although the reasoning of the judgment below is somewhat insufficient, the decision of the court below that applied the U.S. law as the governing law on whether the defendant has a substantive right to seek prohibition of the use of the domain name of this case, and that the California law as the governing law on the establishment of the plaintiff's claim for return of unjust enrichment is justified.

The court below did not err in the misapprehension of law as alleged in the ground of appeal.

The ground of appeal on this part is without merit.

2. As to the grounds of appeal Nos. 2 and 3

A. Whether the defendant has a substantive right to seek the prohibition of the use of the domain name of this case under the U.S. law

According to the records, in order for the plaintiff's act of registering and using the domain name of this case to be illegal as it falls under 15 U.S.C. §1125(d)(1)(A)(A) on the prevention of cyber quota, the plaintiff's act of registering and using the domain name of this case must have distinguishability at the time of registration of the domain name of this case, <2> the trademark of this case and the domain name of this case are similar to or likely to cause confusion with the trademark of this case, and 3) the plaintiff must have bad faith to gain profit from the trademark of this case.

However, according to the facts duly admitted by the court below, it can be recognized that the trademark of this case is well-known as well as widely recognized trademarks in various countries around the world including the United States, which is the country of registration of the domain name of this case at the time of its registration. The domain name of this case refers to the trademark of this case "Internet Network" and is similar to the trademark of this case as it has weak distinguishability from that of "web" and "gTD.com" and it is so similar to that of this case. In addition, the plaintiff's act of distributing the domain name of this case to its "ditcup.com" web site operated for commercial purposes, which is operated for its own "ditcup.com.com," and the plaintiff's act of using the domain name of this case is not deemed to have an intention to attract Internet users by causing confusion, such as its source, support, alliance or connection, and it is recognized that the plaintiff's act of using the domain name of this case constitutes 5 U.S. 1 and 51).

Therefore, the plaintiff's act of registering and using the domain name of this case constitutes 15 U.S.C. §1125(d)(1)(A)(A) and is illegal acts that infringe the defendant's trademark right to the trademark of this case. Thus, the defendant has a substantive right to seek a claim against the plaintiff for the prohibition of the use of the domain name of this case pursuant to the provisions of 15 U.S.C. §1116 on relief order.

B. Whether a person can seek the return of the domain name of this case on the ground of unjust enrichment

According to the records, 15 U.S.C. §1114(2)(D)(v) provides that "the registrant of a domain name, the prohibition of use or the transfer of which has been registered, may seek return of the domain name against the holder of the trademark right by proving that the registration or use of the domain name does not constitute an unlawful act under this Chapter." The above provision is a special provision on unjust enrichment arising from the decision of the dispute resolution agency's improper transfer of the domain name. Therefore, in this case where the issue is whether the defendant's unjust enrichment arising from the decision of the transfer of the domain name of this case was made by the dispute resolution agency's improper transfer of the domain name of this case, even if the law of this case is the law of California of the U.S., the determination of unjust enrichment pursuant to the above annual method should first be made. As seen above, the plaintiff's act of registration or use of the domain name of this case constitutes an unlawful act, and thus, the plaintiff shall not seek return of the domain name of this case against the defendant 15 U.S.14(d14)(A)(A).

In addition, according to the records, unjust enrichment under the laws of California of the United States is established in cases where a person gains unjust enrichment without any reasonable legal basis due to another person's loss. As seen earlier, insofar as the right to seek the prohibition of the use of the domain name of this case is acknowledged under the laws of the United States of America, the registration shall be transferred from the plaintiff to the defendant, and the transfer of the domain name of this case to the defendant cannot be deemed to be unfair without reasonable legal basis. Thus, the plaintiff cannot seek the return of the domain name of this case against the defendant on the ground of unjust enrichment under the laws of California of the United States of

C. Sub-committee

Therefore, the judgment below to the same purport is just and acceptable.

The judgment of the court below is not erroneous in the misapprehension of the U.S. law and California law, as alleged in the grounds of appeal, thereby affecting the judgment.

This part of the grounds of appeal is without merit.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)