SP Co., Ltd. (Attorneys Ansan-type et al., Counsel for the defendant-appellant)

C&M Co., Ltd. (Law Firm LLC, Attorneys Choi Jong-he et al., Counsel for the plaintiff-appellant)

May 29, 2014

Seoul Central District Court Decision 2012Gahap80298 Decided August 16, 2013

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 150 million won with 20% interest per annum from the day following the day on which a copy of the complaint of this case was served to the day of complete payment.

1. The summary of the case and the facts premised on the case

A. Case summary

This case is a case seeking compensation of KRW 150 million (property damage KRW 100 million and KRW 50 million) and damages for delay based on a selective tort, on the ground that the plaintiff broadcasted and transmitted the video works produced by the defendant's imitated and broadcasted to the defendant, thereby causing confusion as to the source by using marks similar to the plaintiff's copyright and property rights (right of reproduction, second copyrighted copyrighted copyrighted works, etc.) and moral rights, which were infringed or have been infringed on author's moral rights, or an unfair competitive act detrimental to the plaintiff's identity and reputation of the plaintiff's business mark, or committed an illegal act infringing on the plaintiff's reputation and reputation of the video works created by considerable effort and investment, or committed an illegal act unauthorizedly taking advantage of the plaintiff's ability to inhale customers.

The judgment of the court of first instance rejected the Plaintiff’s claim on the ground that Defendant’s video works are not substantially similar to the Plaintiff’s video works, and that Plaintiff’s video works were not used as the Plaintiff’s product mark or business mark, and that Defendant’s act of manufacturing and conducting business activities using some pages or composition of Plaintiff’s video works does not constitute tort. The Plaintiff appealed against this.

B. Presumed factual basis

【Evidence A1-1, 2, 3-1, 2, 14-2, 15-1, 2, 3, 16-1, 2, 17, 18, 19, 21, 22, 26-1, 2, 2, A-28, A34, 55-1, 2, 57-1 through 35, 58-1, 17, 17, 6, 7, 8, 9, 12, 15, 18, 19, 32, and the purport of the whole pleadings

(i)The Party;

㈎ 원고는 지상파방송사업을 목적으로 하는 회사로서 2011. 3. 23.부터 ‘짝’이라는 제목의 영상물을 제작한 다음, 매주 수요일 저녁 11시 15분부터 60분 동안 방송하였다.

㈏ 피고는 방송, 영화, 음악, 공연, 게임 등의 사업을 목적으로 하는 회사로서 방송채널 ‘tvN’을 통하여 ‘새러데이 나잇 라이브 코리아(Saturday Night Live Korea) 시즌 2’(이하 ‘SNL 코리아’라 한다)라는 제목의 예능방송에서 2012. 6. 16. ‘짝 재소자특집 1부‘, 2012. 6. 23. ‘짝 재소자특집 2부‘, 2012. 7. 14. ‘짝 재소자 리턴즈‘, 2012. 10. 6. ‘짝 메디컬 특집’(이하, 이들을 ‘피고 영상물 1’이라 한다)이라는 제목의 영상물을 6분 정도씩 4차례에 걸쳐 방송하였고, ‘RIFT’라는 게임의 국내 진출을 위해 제작된 웹 사이트에서 ‘짝꿍 게이머 특집’(이하 ‘피고 영상물 2’라 한다)이라는 제목으로 예고편(1분), 2012. 2. 17.부터 1부 만남편(20분), 2부 느낌편(15분)을, 2012. 2. 24.부터 3부 최종선택편(10분)을 전송하였다.

Luxembourg Videos produced and broadcasted by the Plaintiff and the Defendant

㈎ 원고 영상물

Video works produced and broadcasted by the Plaintiff are viewed at the point of time of observation of the contributor’s living, with the content that the Plaintiff’s existence is found during a day, according to the “12 lecture age” prescribed by the following: (a) the process by which the general male and female who reached the time of marriage is gathered in the space of patriotic village and the process by which the ice broadcast was recorded; and (b) the contributor’s act of finding even by the general male and female, not the professional worship, is performed; and (c) the performer’s act of finding even himself/herself, not by the ordinary male and female, is committed. The Plaintiff’s video works include the parts as shown in attached Table 1.

㈏ 피고 영상물 1

SNL Korea is comprised of the SNN’s SVN’s “tvN Pison Piscodi broadcasting with contributions made by strawtainers, and is carried out as a living broadcast.” The SNNL Korea is composed of the bean, “Maclat News,” “Murdo urine,” “Murdo urine,” etc., which are in line with the characteristics of the contributed artist, and mainly consist of franccos, which are expressed in exaggeration of political or human climate, and franccos (Slasedy) and parody, which are expressed in exaggeration of the act of distribution.

Defendant 1’s video works are one of the bean of SNL Korea’s bean, and include various cases that occur in the situation where a person, who is not a general male and female, stays in the role of a prisoner or a patient, and finds an even number of cases, including the parts as shown in attached Form 2.

㈐ 피고 영상물 2

Defendant 2 was produced to publicize “RIFT”, which is an online game that is newly released in the Republic of Korea, as the event video work, which is transmitted through the instant web site operated by the Defendant, which is a web site of the online game operated by the Defendant. This is the content that: (a) in the process of finding an even number that is the other party to the game by gathering the game together with “Dungeon”, Defendant 2 introduced a system for Quast (the task to be resolved by the users in the online game) in the online game; (b) ordering the contributor to play a task; and (c) ordering the contributor to play a choice according to the performance of the task rather than the choice according to the pure mind of the contributor; and (d) making it impossible for the other party to the contributor to know the progress of the decision; and (c) it is included in the separate page 3, as the last one.

ally, a type of video work similar to the Plaintiff and the Defendant’s video work

The video works of the type similar to the Plaintiff’s video works are as follows: “EBC, from 1994 to 2001.”; “Free Declaration - Plux operations - Plux War (KBS, from 2001 to 2003.) of MBS,” “elective male and female (SBS, from 2006 to 2007.0)”; “SBS (S, from 2008 to 2010.0)”; “S208 to 2010”; “S208 to 4, including MBC, from 2008 to 209 to 2008 to 2009; “S201 to 201 to 201 to 201 to 201 to 201 to 201 to 201 to 300 to 300 to 300 to 200.

2. Issues of the instant case

A. Whether the copyright and property rights (right of reproduction and secondary copyrighted works) with respect to the Plaintiff’s video works and moral rights are infringed (whether the Plaintiff’s video works and Defendant’s video works are substantially similar)

B. Whether the act of unfair competition was constituted

(1) Whether “ even” as the title of the video product produced by the Plaintiff constitutes a distinctive trademark or product of the Plaintiff

She Whether the act of impairing the distinctiveness or reputation of the mark, such as the plaintiff's well-known goods

C. Whether general tort liability is established

3. The judgment of this Court

A. Whether the copyright and property rights (right of reproduction and secondary copyrighted works) with respect to the Plaintiff’s video works and moral rights are infringed (whether the Plaintiff’s video works and Defendant’s video works are substantially similar)

【Plaintiff’s Claim】

The plaintiff asserts that the copyright of the plaintiff's video work is a work of creative nature distinct from the existing even creation program by in harmony with the original expression, development process, and posting of image, etc. of the plaintiff's video work, and that the copyright of the plaintiff's video work made by the plaintiff's investment and effort belongs to the plaintiff. The defendant's video work 1 and 2 can be directly understood in the defendant's video work 1 and 2, such as reproduction of the plaintiff's video work, 2, expression of the title of the work, 3, expression of the contributed group's work, etc., and 1 and 2, the intrinsic characteristics of the plaintiff's creative nature, such as the expression of the work

[Dissenting of the Defendant]

In the past, even if a broadcast program is used as an expression expressed in Defendant 1, Defendant 2’s video work, which is similar to the expression indicated in the Plaintiff’s video work, partly introduced the form of current broadcast, emphasizing the reality. The Plaintiff’s original expression method of Plaintiff’s video work is an existing even though it is merely an existing form or expression method used in the instant broadcast program, or merely merely a simple idea, and thus, it is not subject to copyright protection. Therefore, it should be excluded in determining actual similarity. Therefore, even if it was partially similar to the expression expressed in Defendant 1, and Defendant 2’s video work, it is argued that there was no substantial similarity between the two.

[Judgment]

(i) According to evidence (A, 2, 28, 55-1, 2, 57-1 to 35, 58-1 to 17), the following facts may be acknowledged:

㈎ 피고 영상물 1, 2는 원고 영상물의 특정한 장면이나 요소를 모방하여 제작하는 것으로 구상하여 기획되었다.

㈏ 원고 영상물은 전문배우가 아닌 일반인인 남자와 여자 출연자 사이에서 일어나는 사건과 그 과정에서의 행동과 대화, 사건에 대한 출연자의 개인적인 독백 등이 영상물의 많은 부분을 차지한다. 1회분의 방송에 해당하는 영상물에는 공통적으로 다음과 같은 요소를 포함하고 있으며, 이러한 장면이 차지하는 분량 자체는 많지 않다.

(1) Method of expressing the title of a work.

A signboard “sever” in the form of a shesheshel in the form of a broadcast is expressed as a symbol of the Plaintiff’s video work. A signboard is expressed in the form of a blshel in which a seal is printed, in the form of a sheshelgle, in the form of a shelshel characters, and is expressed in the form of a shelshel in the form of a shelshelgle, and the word “sever” is expressed in the form of a blshel in the form of a blshel in which the word “sever” is stamped.

(2) The method of expressing the appearing person's character.

A male and female contributors shall not be replaced by their own name, and shall not be disclosed to the public with the exception of their ages and occupations, and their personal information shall not be disclosed among the contributors. A female with his/her number written is red, a male and female with his/her genetic pumps of yellow, and a male and female with his/her own number written by him/her in his/her face, and a male and female contributors want to find even even “a even even if they are,” on the basis of their numbers and sub-sections on the basis of their number and sub-sections.

(3) Expression of the title of a work by the contributor group.

The broadcast starting point is expressed on the screen, such as “adominary village ○,” or “adominary village ○○,” and the contributor is expressed on the screen, depending on the subject of the filming session as “adominic village ○○” and “○○ special house” according to the subject of the subject of the film.

(4) Expression the situation and space.

The contributor complies with the 12 platform set forth in the Ashea village and lives, and the 12 platform set forth in the 12 platform by usheshel language, each time broadcasting, shows the appearance of even a signboard.

(5) Method of appearing the contributor.

Contributors appear in the order of arrival in the village and do not proceed separately to the situation. The form of arrival of the contributor's vehicle, the form of entry from the vehicle to the front of the pentathy village, the form of entry into the body of the male contributor for one week, the form of arrival of the female contributor after all male contributors arrive, and the body of the male contributor at the time of the arrival of the female contributor, etc. are interviewed in order.

(6) Methods of expression and protocol of self-introduction;

On the next day of the day after the contribution entered the village, the contributor shall sit in front and in front of the pet village, one and one and one and one and one, respectively. Upon the completion of self-introduction by male and female, the contribution shall arrange the personal effects of all the contributors, and then indicate the applicant's academic background and occupation on the left side of the screen with red-fluence (OO), and then indicate the applicant's academic background and occupation, and then indicate the screen on the right side of the screen, which classify the area into the left side of the screen.

(7) Selection of urban communities

Contributors mainly have the time to “urban village selection” on the following day after coming into the village of patriotic village. In the urban village selection site, the producer divided urban village to all the contributors, and then the sound and caption appearing through the loud speaker, “I want to be the male (or female),” and the woman (or female) contributor is expressed at the same time. The male (or female), respectively, begins at intervals of time, and is expressed in the form of urban village by the selected contributor and the selected contributor when the choice is finished to the last male (or female) contributor.

(8) A producer and a beauty interview;

In general, the author shows that the donor talks with the producer in a conversation with the producer. The producer assumes the production process taken in a camera, sets the upper half of the contributor’s body, and simply indicates the donor’s body, such as “An individual instructor aged 8/31, South and North Korea,” and shows the content of the donor’s name as a caption. The author shows the face and sequence of the other contributor’s face and sequence that the performer has taken as a chemical title, on the left side of the screen.

(9) Family and telephone calls.

In a place where the contributor shows that he/she is in a common space with his/her family, the caption called "a woman 5 mother and telephone" is expressed in the mobile phone picture and column, and the conversation between the contributor and the telephone shall be made up of the voice and caption.

(10) Games for the acquisition of rights of a set;

‘깃발달리기’ 게임에서 이긴 출연자는 원하는 사람과 데이트를 할 수 있는 ‘데이트권리’를 얻는데, 이 장면에서는 해변에 ‘짝‘이라고 쓰인 하얀색 깃발을 고정해놓고 모래밭을 달려서 그 깃발을 낚아챈 사람이 데이트권리를 획득하는 장면이 나온다.

(11) The last page of the program.

In guiding the method of contribution of the general public, the application for contribution of Cheongsama to the Cheongsama that does not have even want to send it even, and the address and search windows of the website address and the search box are shown in the box of the phrase, such as the phrase, etc., and the direction of the application for contribution in the form of even ‘profes' is shown.

(12) Development of a case through an internal exchange;

The act of sexual intercourse is not a light, but a flat, which transmits the progress of the case or the deliberation, etc. of the contributors by using the language as an observationer, who is not a light, and in comparison with the inside of the general documentaryman, one ton of voice is high and rapid.

(13) Use of Ambassadors

The following Ambassadors have been used:

On the top of the ticket, a letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter letter, letter letter letter letter letter letter letter letter letter letter letter letter, letter letter letter letter letter letter letter letter letter letter, letter letter letter letter letter letter letter letter letter letter, letter letter letter letter letter letter letter, letter letter letter letter letter letter, letter letter letter,

㈐ 피고 영상물 1은 다음과 같은 장면을 포함하고 있다.

(1) Method of expressing the title of a work.

In that column, sheshe is called “sever” as a ushel character on the signboard, and there is a small painting pattern as soon as possible on the left side.

(2) The method of expressing the appearing person's character.

The contributor, who is not a general public, is identified as male ○ and female ○, and a male snife the uniforms. A male snife the wave, a female snife the red snife on the left side, and the front side includes the word ‘snife' and the number to be referred to him/her under his/her name. On the back side, he/she want to leave the word ‘snife' on the basis of the number and the Myanmar.

(3) Expression of the title of a work by the contributor group.

The introduction department used the expression ‘Special House for Prisoners in the First Prison'.

(4) The situation and the method of expressing the space (or village and 12 years old);

The introduction of sentence is similar to the introduction of the Plaintiff’s film when expressing the space and situation of prisoners “a scam,” and when displaying ‘scam’ signboards and pents, their location are similar to the introduction of the Plaintiff’s film.

(5) Method of appearing the contributor.

On the face of the arrival of the police vehicle in the Allied village, the entrance of the prisoner into the front end of the Allied village from the male contributor, and the appearance of the female contributor from the male contributor to the waiting for the female contributor.

(6) Expression of a self-introduction.

On the next day after the date when the contributor entered the village, all the contributors are sittinged at one to the front end of the pentado, and one to introduce self-introduction in the future.

(7) Selection of urban communities

Part 1 of the special house of prisoners shows that “The first city selection after self-introduction is followed by the production team “I am going to the front side of a woman who wants to be trained with 4,” through a loudspeaker, and the two copies of the special house of prisoners are “I am to the front side of the production team,” and there is a door to the outside that “I am to the front side of the female,” and the production team is “I am to the front side of the male, and I am to the front day of the selection of the city. I am to the outside through a loudspeaker. I am to the outside that “I am to am to the front of the male. I am to am to am to the front of the man.” The contributor is selected by the other contributor for the mind, and am to the city.

(8) A producer and a beauty interview;

In the middle of the film, a interview hall is going through the production process and the face is the form that sets the upper half of the contributor's body and divides the production process and dialogue, and it is shown in the color that contains the personal characteristics of the contributor.

(9) Family and telephone calls.

A male contributor has a face to communicate with his mother, and is appearing in a caption stating "the telephone picture and the telephone picture with the mother of South and North 4", and the contents of the telephone between the contributor and the other party are expressed.

(10) Games for the acquisition of rights of a set;

The production is "I would like to read the right to a finite with a low-finial flag to the finite. There is a finial aspect from the start of the production to the finial with a flag.

(11) The last page of the program.

Part 1 of the prisoner's special house provides that "a woman who wants to be a prisoner even with the prisoner," two copies of the prisoner's special house, "a prisoner released in prison for more than 10 years," and the prisoner's special house provides an instruction on the method of application for contribution of "an overseas prisoner who has been arrested in a foreign country," and the web site address and a copy that has the form of entry in the search language is turned out in even in the background of the writing and wave.

(12) Development of a case through an internal exchange;

The use of the language and the speed of the Plaintiff’s video works is similar to that of a flat body.

(13) Use of Ambassadors

On the top of the table, a letter of self-introduction in the text of this paper, is written on the next day after admission. The first city is selected after the introduction of self-introduction. 4 on the side of the male who wants to take meals together. At present, I want to see that today's urban village is the first place by the female. 2, I will see that today's urban village is the first place by the male. At present, I will see that today's long-term urban village is the first place by the male. I will see. I will see that the long-term village is a string. I will see the age of the path. All we will live in the era of the path, and we will see how we will see how we will path and how we can see.

㈐ 피고 영상물 2는 다음과 같은 장면을 포함하고 있다.

(1) The title of a program is expressed.

‘짝꿍 게이머 특집’이라는 제목이 나오고 붓글씨 필체의 ‘짝‘이라는 글자가 크게 강조되어 있으며, ‘짝꿍‘이라는 글자 옆의 작은 테두리 안에 빨간색 도장체로 ‘리프트‘라는 글자가 적혀 있다. 영상 전반에 걸쳐 오른쪽 위에 프로그램 제목을 표시하는 부분에서는 ‘짝꿍 게이머특집 ○부’라고 표시되어 있다.

(2) The method of expressing the appearing person's character.

The male and female contributors are disadvantageous to male and female ○, and female and male are suffering from the same color of the same color with the number stated.

(3) Self-introduction and protocol-making.

The face value of the donor's own presentation appears to be a tool similar to the video, the player's photograph on the right side of the screen after self-introduction was divided into a vertical line, and the screen is shown to be the left side of the screen and the main career was shown to be the screen.

(4) A producer and a beauty interview.

In the form of a interview with a producer, there is a face to express theme in the form of a interview with a producer, and there is a column showing the photographs and sequences of the counterpart contributor to talk about by the donor.

(5) Urban village selection.

In this chapter, there is a room for the contributor to choose the other party who wants to drink as the city, and in this context, the right to choose urban village has been given the first opportunity to choose. The right to choose urban village is the share of male children, and when the female contributor required for mind passes, the male contributors drink urban village according to the man's contributor, and the non-selected people drink urban village.

(6) The development of a case through an internal exchange.

The author explains the development of the case through the ero-mail and the ero-mail with a color similar to the ero-mail of the plaintiff's ero-mail.

B. Doll Copyright Act defines a work as a “a creative production that expresses human thoughts or emotions,” and thus, an idea or appraisal must be deemed a creative expression in order to be protected pursuant to the Copyright Act. In addition, in order to have a creative expression of a description, it is not necessary to have an original expression in a strict sense, and if a description of a description appears as an expression of a author, it can be deemed sufficient, but on the other hand, it cannot be said that the author’s identity cannot be said to have been expressed even if the expression itself is too short or in the limit of expression, or if the expression is a flat and shaking, the author’s identity cannot be deemed to have been expressed. In addition, the object to be protected under the Copyright Act is the creative expression of ideas or emotions, and is not the idea, appraisal, idea, or fact itself.

Meanwhile, Article 16 of the Copyright Act provides that "the author shall have the right to reproduce his/her work." Article 2 subparagraph 22 of the Copyright Act provides that "the reproduction of a work" means fixing the reproduction to a tangible object temporarily or permanently or by means of printing, photographing, copying, reproducing, recording, video recording, or other means. Therefore, "the reproduction of a work in accordance with the Copyright Act" refers to the reproduction of a work in accordance with the existing work to the extent sufficient to recognize or recognize its content and form. Here, "re-making" includes not only the case having the same nature as the existing work, but also the case where not only the case having a complete same degree but also the case having a certain degree of modification, increase, or decrease in its identity is substantially the same as that of the work. And "the second preparation of a second work" refers to a case where the person who creates a new idea or appraisal by correcting, increasing, or changing its essential characteristics, while maintaining the identity of its expression, and directly expresses the work in a new expression or appraisal, thereby referring to the act of directly expressing the original nature of the work (see Supreme Court Decision 7084.

Therefore, in a copyright infringement lawsuit against a cinematographic work, where it is argued that the other party made a reproduction or a derivative work with a part of the previous copyrighted works, not as a whole, it should first be recognized as the part recognized as the identity of the previous copyrighted works and the Defendant’s copyrighted works, and then, it should be determined individually as to whether the relevant part of the other party is a creative expression, whether the relevant part of the other party can be recognized or not, or may be recognizable as, the content and form of the existing copyrighted works, or whether the essential characteristics of the expression can be directly

Therefore, the following circumstances should be taken into consideration in determining whether “the part asserted by the Plaintiff that the right of reproduction or the right of production of derivative copyrighted works was infringed among the Plaintiff’s copyrighted works” is subject to protection under the Copyright Act and whether the pertinent part of Defendant’s copyrighted works is reproduced or prepared with the Plaintiff’s copyrighted works. As a result, in determining whether there is a substantial similarity between two copyrighted works in order to determine whether copyright has been infringed, only those constituting a creative expression form should be prepared (see Supreme Court Decision 2009Da16742, Nov. 11, 2010).

According to the above premise facts and the above facts acknowledged, Defendant 1 and 2 were devised and planned on the basis of Plaintiff’s video work, but the contents of Plaintiff’s video work, which the Plaintiff asserted as a creative site, are merely included in the area of ideas not subject to protection under the Copyright Act, or is a site already being used in other video works, and it is difficult to recognize creativity, and therefore, it is difficult to consider in determining actual similarity. Even if the video using such elements can constitute a characteristic element of Plaintiff’s video work itself, it cannot be readily concluded that there exists creativity by itself. The reasons are as follows.

㈎ 저작물의 제목을 표현하는 방식

The word “sever” indicated in the signboard was created to indicate “sever”, the title of the Plaintiff’s video work, in order to indicate the title in the Plaintiff’s video work. Since it was used to indicate the title on the face of the Plaintiff’s video work, it cannot be deemed as being created in itself in order to independently make it an object of appreciation, and it cannot be deemed as an independent work of art. Moreover, if the word “sever” is excluded from the word “sever”, it is difficult to view that there is an element to acknowledge a special creativeity by itself, since it is merely inserting a black source inside the original body on a white basis.

㈏ 등장인물을 표현하는 방식

In addition, the phrase "No. 1," "No. 1, excluding the age and occupation of the contributor," which is anonymous and unrecognized by the contributor, is merely an idea that is not protected by copyright, to allow the contributor to take the uniforms separated from a specific color, such as "No. 1," "No. 2," and "No. 1," while the phrase "No. 1," is ordinarily used as an expression "no. 1," and "no. 1," on the ground of that the expression "no. 1," and "no. 1," it cannot be deemed that any creative expression is included in the word "no. 1," and the expression "no. 1," and the expression "no. 1, the original part and the part of the plaintiff's image cannot be deemed to constitute a creative expression of the plaintiff's image in the form of ordinary use, and if the expression "no. 1, the original part" cannot be deemed to constitute an expression "no. 1, other than the original part of the expression.

㈐ 출연자 집단별 저작물 제목 표현

The term “competing village” is merely a combination of the word “competing” and “the village” that mean a loving mind and the word “the village,” and cannot be seen as a creative expression. In addition, even if the phrase “○○ Special House” was added to “○○○○” instead of “○○ Session,” which is ordinarily used, or “theme or contributor’s characteristics,” it is merely merely a mere form of ideas or common use, and thus does not constitute creative expressions.

㈑ 상황과 공간을 표현하는 방식(애정촌과 12강령)

It is nothing more than a mere idea that a person presents his/her platform by stating the content of his/her platform, but it is merely a common method used in a video work and does not constitute a creative expression different from another creative expression. In the case of a method that shows penture by side of the signboard of the dong-gu, even if the letter "a even" is a method that shows penture, the title or title of the video work and the background place where the case is proceeding in the video work together with the plant in which the strings are inscribed cannot be deemed an original expression of the plaintiff's video work in a way that is commonly used.

㈒ 출연자의 등장 방식

In the form of the contributor's vehicle's arrival, and from the vehicle to the front of the pentathy village, the form of a female contributor's arrival after the male contributor's arrival, the form of an interviewing the male contributor's inner organs at the time of the arrival of the female contributor's arrival, and the appearance of the contributor's arrival at a specific place is often used in other ice broadcasting, and it is difficult to see that there is any creative expression.

㈓ 자기소개의 표현 방식과 프로필 정리 장면

A creative expression cannot be deemed as a creative expression merely because there is no other means to express it in the future, for example, one person who contributed to a place that is a background for self-introduction, and further, one person, as well as other means to express it. It is difficult to view that the composition of a creative screen or photographing method, distinct from other visual works, has been used on the face. Moreover, the composition of a protruding is not different from the existing ordinary method used for the introduction of contributors in video works, and therefore creativeity cannot be recognized as it is not recognized.

㈔ 등장인물의 마음을 표현하는 방식(도시락 선택)

The establishment itself of choosing the nature required for the mind and the nature of the urban community itself is nothing more than an idea, and it cannot be seen as a creative expression. Moreover, at the urban community selection site, the production of the production of the “to be a loudspeaker.” The selection of the urban community in the city in which women would first take place. From the starting point, “Seman ○” is merely a guidance phrase for the progress of the urban community selection process, and it cannot be deemed that “Seman ○” includes a creative element different from that of the foregoing.

㈕ 제작진과 속마음 인터뷰

In the state of non-confising the first half of the contributor's idea, the performer expresses his own idea on the screen a yellow column indicating the identity of the contributor simply, and the method of displaying the news of the contributor as a caption is widely used in the even mar program such as the plaintiff's video work, and it is difficult to view that the plaintiff grants new creativity.

㈖ 가족과 전화 통화

The method of allowing a person to have a telephone call with his family by using a designated telephone apparatus belongs to the area of ideas, and the contents of conversations between the person who made the telephone as well as the contributor are expressed as voice and caption as they are, and the form of a cell phone picture on the screen is merely a common method used for the call of the contributor and the other party in the general arts program, and it cannot be said that only the plaintiff is a creative expression.

p.C. game to obtain rights

For the right to learn with the other party, the donor performed a specific game and performed a set with the other contributor with the right to participate in the game with the right to participate in the game, and the method of displaying a flag on the piracy does not merely mean a simple idea, and the phrase "the right to participate in the game" is merely a combination of simple words, and the word "the right to participate in the game is limited to the right to participate in the match with the other contributor, and the word "the right to participate in the game is limited to the union of simple words." The word "the expression is merely a content that provides information about the commencement of the game, so it cannot be viewed as creative expression."

㈘ 프로그램 종료 마지막 장면

The phrase, “, etc.,” etc. is merely a notification tool on the application for intervention by broadcasting, and cannot be said to have any originality. The part indicating the Plaintiff’s web site address in the column of wave color, and the part indicating the word “a even an even” and the phrase “a search” inside the search format cannot be deemed to constitute a unique expression, unlike the content for the guide to enter the Plaintiff’s web site into and search the Plaintiff’s title as the Plaintiff’s video product.

㈙ 내레이션을 통한 사건 전개

In order to emphasize the position of the observation, the characteristics of using a letter and a literary body, such as raising the tons of voices and rapid speed compared to the internalization of the general documentary mentor, etc., are limited to the idea for recreation, and if the use of the Plaintiff’s video works falls under the part of the character work including a character containing a character describing the special character by the author, the color of sexual friendship itself cannot be said to constitute the Plaintiff’s creative expression.

㈚ 대사의 동일, 유사성(피고 영상물 1에 대하여)

The language of an ambassador on the introduction of the rules or the guidance for the introduction or progress of an internal or production process for the explanation of the situation is merely a content for the purpose of information transmission, or merely an expression already used for the purpose of use is cited by the Plaintiff, and thus cannot be deemed as a creative expression of the Plaintiff’s video.

In addition, in the Plaintiff’s cinematographic work, the phrase “us all live in the patriotic era.” In the context of the Plaintiff’s cinematographic work, it is reasonable to view that the phrase “Is that we can see that, “Is our society’s narrowness village, the place, situation, and the general male and female who is married in the society is established, and that in this context, Is even if the Plaintiff’s planning intention to look back to the people’s sacrifice and care, and love is an expression recognized as creative.” However, even if the above similar phrase is used in Defendant 1’s cinematographic work, it is difficult to conclude that Defendant 1’s 4, who is a fire victim, is identical or similar to that of Defendant 2’s voluntary indecent act, using the opportunity to use it, is an indecent act of Defendant 1’s average male and female head, and it is hard to conclude that Defendant 1’s aforementioned 1’s oral act was not identical or similar to that of Defendant 2’s aforementioned.”

In addition, in light of the characteristics of the Plaintiff’s video work, ice even scam, it is reasonable to view that the creativity of the Plaintiff’s video work is in the process of a specific case that occurs between the contributors as above. Defendant 1 and the contributor’s scam, mainly expressing circumstances that make it difficult to realize as codins, have been assigned a task to perform as the game, and Defendant 2, which mainly expresses the case that occurs in the process of completing it, has a substantial difference from the Plaintiff’s scam in the course of specific cases.

As a result, even if there are some similar pages between the Plaintiff’s video work and the Defendant’s video work 1 and 2, it is difficult to view that Defendant 1 and 2’s creative characteristics, which are subject to the copyright protection of the Plaintiff’s video work, are shown in Defendant 1 and 2, because the qualitative and quantitative share of the part in Defendant 1 and 2, are not good, and there is a considerable difference between Defendant 1 and 2 in the form of expression by expressing the specific case between the contributor differently from the Plaintiff’s video work. Therefore, it is difficult to view that Defendant 1 and 2 are practically similar or subordinate to the Plaintiff’s video work. Accordingly, the Plaintiff’s assertion on the premise that Defendant 1 and 2 infringed the Plaintiff’s author’s property rights and moral rights of the Plaintiff’s video work is without any justifiable reason.

B. Whether the act of unfair competition was constituted

(1) Whether “ even” as the title of the video product produced by the Plaintiff constitutes a distinctive trademark or product of the Plaintiff

【Plaintiff’s Claim】

원고는, 원고 영상물이 원고의 대표적인 방송으로서 시청자 등 방송영상물 소비자와 거래관계자 등에게 전국적으로 주지·저명한 상품이고, 원고 영상물 ‘짝’이라는 제목과 원고 영상물의 창작적, 독창적 표현들은 원고의 방송프로그램이라는 상품을 식별하게 하는 국내에서 널리 인식된 상품표지나 영업표지에 해당하며, 피고는 ‘짝’과 ‘짝꿍’이라는 제목으로 원고 영상물과 실질적으로 동일, 유사한 피고 영상물 1, 2를 제작하여 방송하거나 전송함으로써 시청자 등에게 대상 영상물의 상품주체가 원고와 밀접한 관계에 있는 것으로 오신하게 하는 등으로 상품주체나 영업주체를 혼동하게 하였다고 주장한다.

[Dissenting of the Defendant]

피고는, 원고 영상물의 제목에 불과한 ‘짝‘이나 원고가 주장하는 원고 영상물의 아이디어나 장면들이 원고의 상품표지나 영업표지에 해당한다거나 상품표지나 영업표지로 국내에 널리 인식되었다고 볼 수 없고, 피고의 ‘짝 재소자 특집’, ‘짝꿍 게이머 특집’이라는 문구나 피고 영상물 1, 2의 아이디어나 장면들은 그 출처가 피고에게 있다는 점을 나타내기 위한 상품표지로 사용된 것이 아니며, 상품 출처의 혼동 가능성도 없으므로 상품주체나 영업주체를 혼동하게 할 우려가 없다고 다툰다.

[Judgment]

㈎ 증거(갑3, 4의 1, 2, 3, 갑5, 7, 22)에 변론 전체의 취지를 종합하면, 원고 영상물이 2011. 3. 23부터 2013. 1. 6.까지 매주 수요일 23:15부터 60분 동안 총 88회에 걸쳐 방송되었고, 2012. 1. 4.부터 2012. 6. 27.까지 사이에 원고 영상물의 시청률은 약 10.24%이며, ‘짝’이라는 단어가 2012. 5. 9.과 2012. 5. 16. 검색사이트인 네이버의 교양프로그램 일간 검색어 1위였고 원고 영상물에 관하여 여러 언론매체를 통하여 보도가 이루어졌으며, 원고 영상물이 네이버 TV스토어를 통해서 회당 700원, 전회 60,200원에 판매된 사실을 인정할 수 있다.

㈏ 부정경쟁방지 및 영업비밀보호에 관한 법률(이하, ‘부정경쟁방지법’이라 한다) 2조 1호 의 ‘ 가 ’와 ‘나’ 목 에서 널리 인식된 타인의 상품이나 영업의 표지와 동일하거나 유사한 상품 등의 표지를 사용하는 것을 부정경쟁행위로 정한 취지는, 그러한 행위로 널리 인식된 상품 등의 표지에 현실화되어 나타난 타인의 영업상 신용을 자신의 것으로 오인, 혼동시켜 고객을 획득하는 행위를 방지함으로써 널리 인식된 타인의 상품 등 표지가 가진 영업상의 신용을 보호하기 위한 것이다. 일반적으로 서적류의 제목은 정기간행물이나 시리즈물의 제목으로 사용하는 등과 같이 사용 태양, 사용자의 의도, 사용 경위 등 구체적 사정에 따라 실제 거래계에서 제목의 사용이 서적의 출처를 표시하는 식별표지로서 인식될 수 있는 특별한 사정( 대법원 2005. 8. 25. 선고 2005다22770 판결 , 대법원 2007. 1. 25. 선고 2005다67223 판결 등 참조)이 없다면 해당 저작물의 창작물로서의 명칭 내지는 그 내용을 함축적으로 나타내는 것으로 품질을 나타내는 보통명칭 또는 관용상표와 같은 성격을 가지는 것이므로 그러한 창작물을 출판하고 제조·판매하고자 하는 사람은 저작권법에 저촉되지 아니한다면 누구든지 사용할 수 있다( 대법원 1995. 9. 26. 선고 95다3381 판결 참조). 서적류의 제목과 마찬가지로 영상물의 제목도 어디까지나 저작물인 영상물을 특정하기 위한 것으로 상품과 그 출처 또는 영상물을 제작, 방영하거나 배급사업을 영위하는 영업주체를 식별하는 표지로서 인식되는 것은 아니므로 특정한 방송영상물이 인기를 얻어 그 제목이 시청자들 사이에 널리 알려지게 되었고 그에 따라 그 해당 제목으로 특정된 저작물인 영상물의 존재가 널리 인식되었다고 평가할 수 있다고 하더라도 특정한 상품이나 영업주체가 널리 인식되었다거나 저명하게 되었다고 평가할 수는 없다. 따라서 어떤 리얼리티방송을 녹화한 영상물의 제목이 부정경쟁방지법에 정해진 상품이나 영업의 표지에 해당하기 위해서는 특정한 영상물의 제목이 독자적인 특징을 가지고 또 그 제목이 장기간 계속하여 독점적으로 사용되거나 단기간이라도 강력한 선전 등과 함께 사용되어 그 제목이 특정한 사람의 상품이나 영업을 표시하는 표지로서 수요자인 시청자들 사이에 널리 인식되었다고 인정되어야 하고, 그에 이르지 아니한 경우에는 부정경쟁방지법에 정해진 상품이나 영업의 표지 해당하지 아니한다고 해석함이 타당하다.

According to the aforementioned premise and the above facts, as a mark indicating a terrestrial broadcasting business, the Plaintiff’s title “SBS” or “SBS” is a mark indicating its business, and expressed the contents of a video recording showing the process by gathering both men and women at the time of marriage-based marriage in the space of pet village, and it does not in itself be perceived as a mark identifying the business entity engaging in broadcasting the goods, source, or image. Thus, even if a specific broadcast recording is obtained a seal and its title widely known among viewers, it cannot be seen that the existence of a specific broadcast recording is widely known or well-known. Moreover, if the two or more specific goods or business entity were widely known, the term “scambling,” which is the subject of the Plaintiff’s image works, cannot be deemed as having been widely perceived or well-known. Moreover, if the two or more parts of the video recording works constitute a set of characters or a set of characters, and thus, they cannot be seen as having been separated from one another’s own expression or a set of characters.

Therefore, it is not sufficient to find that the ordinary master’s characters, “a even”, as the business mark of the Plaintiff’s video work, can be confirmed that the Plaintiff’s video itself had been widely known among the viewers, and there is no other evidence to acknowledge it. Moreover, the face of the Plaintiff’s video work is merely the content of the video work, and it is difficult to deem that the face of the Plaintiff’s video works has function as a product mark or business mark, and there is insufficient evidence to acknowledge that the face of the Plaintiff’s video works acquired a well-known recognition among the consumers as a product mark or business mark of the Plaintiff’s video work, and there is no other evidence to acknowledge it.

However, in light of the specific circumstances, such as the Plaintiff’s form of use, intent, and process of use by using the “s even” as the title of the video screen that the Plaintiff regularly broadcasted, it seems that there are special circumstances that the use of the title of the video product can be perceived as an identification mark indicating the source of the video product, and there is room to view that the “s even”, which is the title of the Plaintiff’s video product, constitutes a product mark that acquired well-knownness.

그러나 그러하다고 하여도 원고가 피고가 사용한 상품표지라 주장하는 ‘짝’, ‘짝꿍’과 원고 영상물의 제목인 ‘짝’은 한 글자 또는 두 글자로 이루어진 보통명사에 불과하여 식별력이 매우 미약하므로 표지 그 자체만으로 동일 또는 유사한 상품표지라고 단정하기 어렵다.

그뿐만 아니라 피고 영상물 1은 ‘SNL 코리아’라는 영상물의 일부인 6분 정도 길이의 콩트로서 ‘SNL 코리아’라는 피고 영상물 1 자체의 별도의 제목을 가지고 있을 뿐만 아니라 ‘tvN‘ 채널을 통해서 방송되었고, 피고 영상물 2는 피고가 운영하는 온라인 게임 사이트인 넷마블 사이트를 통하여 전송되고 있는 ‘RIFT’의 홍보영상으로서 별도의 거래대상이 되지도 않으므로 ‘짝’과 ‘짝’, ‘짝꿍’ 사이에 혼동의 염려가 있다고 보기도 어렵고, 증거(갑20의 1에서 7, 갑33의 1에서 8)를 종합하여 보더라도 원고의 ‘짝’과 피고의 ‘짝’, ‘짝꿍’ 사이에 혼동 또는 혼동의 염려가 있다고 단정하기에 부족하며, 달리 이를 인정할 증거도 없다. 원고의 위 주장은 이유 없다.

She Whether the act of impairing the distinctiveness or reputation of the mark, such as the plaintiff's well-known goods

【Plaintiff’s Claim】

원고는, 피고 영상물 1은 과도한 성적 묘사와 성범죄에 대한 희화화가 주요 내용으로 화면 구성 및 장면의 표현 역시 상당히 자극적이고 선정적이고, 피고 영상물 1이 방영된 ‘SNL코리아‘는 19세 이상이 시청할 수 있는 성인용 방송으로서 지상파 방송에 대한 방송심의에 관한 규정에 위반되는 내용이 대부분을 차지하며, 피고 영상물 2의 예고 및 1부를 접한 대부분 시청자는 원고가 원고 영상물의 ‘게이머 특집‘을 방송한 것으로 판단하고, 지상파 방송사의 책임을 다하지 못하고, ’케이블방송 수준‘이라는 표현을 쓰며 비난하였으므로 피고가 정당한 사유 없이 원고의 저명한 상품 등 표지에 해당하는 ’짝‘과 유사한 ’짝’과 ‘짝꿍’이라는 제목으로 원고 영상물과 실질적으로 동일, 유사한 피고 영상물 1, 2를 제작, 방송 또는 전송함으로써 원고의 상품 등 표지의 식별력이나 명성을 손상하는 행위를 하였다고 주장한다.

[Dissenting of the Defendant]

피고는, ‘짝’이나 원고 영상물의 장면은 국내에 널리 알려진 원고의 상품 등 표지에 해당하지 않고, ‘짝’과 ‘짝꿍’ 또는 피고 영상물 1, 2의 장면이 피고의 상품 등의 표지로 사용된 것도 아니며, 이로 말미암아 원고의 상품 등 표지의 식별력이나 명성이 손상되는 구체적인 결과가 객관적으로 발생하였거나 그러한 가능성이 크지 않다고 다툰다.

[Judgment]

In order to be protected under Article 2 subparagraph 1 (c) of the Unfair Competition Prevention Act, the mark of the plaintiff's product, etc. is well known to the extent that the mark of the plaintiff's product, etc. is well known among traders or consumers within a certain area of Korea (see Supreme Court Decision 2002Da13782 delivered on May 14, 2004).

However, evidence (A, A, 4-1, 2, 3, 5, 7, 13, 22, 53, and 56) alone is insufficient to recognize that the title of the Plaintiff’s video product and the pages contained in the video product have reached a famous degree beyond the degree of recognition as the Plaintiff’s product or business mark, and there is no other evidence to acknowledge the Plaintiff’s assertion. Therefore, the Plaintiff’s assertion, which is the title of the Plaintiff’s video product, on the premise that the content of the “sever” and its video product constitute a well-known Plaintiff’s product mark, etc., is without merit.

C. Whether general tort liability is established

【Plaintiff’s Claim】

The Plaintiff asserts that the Defendant’s production of Defendant 1 and 2 based on the Plaintiff’s expression and composition, etc., and the Defendant’s use of Defendant 1 and 2 as the location of SNL Korea, raising viewing rate, raising advertising profit, and providing a re-transmission service for consideration. The Defendant’s use in advertising online games sold by the Defendant constitutes a tort under Article 750 of the Civil Act, as it infringes on the economic interests that the Plaintiff, a competitor, obtained by using or permitting the use of the said video works, by taking advantage of the reputation and customer attraction personnel of the Plaintiff’s video works that were built with considerable effort and investment.

[Dissenting of the Defendant]

The Defendant’s intent and content, subject matter, and media of Defendant 1 and 2 are not in competition with the Plaintiff’s video work, and the expressions of Plaintiff’s video work do not constitute tort since they are merely a composition, expression, or idea used commonly in the previous even mar broadcasting or ice art broadcasting. The Defendant’s use of the expression or idea of Plaintiff’s video work is socially permissible, and it is deemed that Defendant’s use of the expression or idea of Plaintiff’s video work leads to viewers’ interest by its own originality. As such, it does not mean that the Plaintiff’s outcome was used without permission or took advantage of the outcome without permission, and as a result, it did not constitute tort on the ground that the Plaintiff did not incur any damage.

[Judgment]

(i) The following facts can be acknowledged in full view of evidence (A21, A23-1, A2, A52, A53-66, B20, 21, 22, 37-42) and the purport of the entire pleadings:

㈎ 원고가 원고 영상물을 제작하기 위하여 연출진 9명, 작가 13명, 외주제작팀 13명 정도, 그밖에 촬영, 조명, 녹음, 음악, 효과, 편집 프로듀서의 제작 인력 50명 정도와 영상물 하나에 약 4,800만 원 정도의 제작비를 투입하였고, 원고 영상물은 원고의 홈페이지를 비롯하여 IPTV 등에서 다시보기 서비스로 전송되고 있으며 그 밖에 인터넷을 통해 유료로 제공되고 있다.

㈏ 원고 또는 원고와 밀접한 관련이 있는 드라마 전문 채널 ‘SBS플러스‘는 피고가 제작한 ‘Show Me The Money(Mnet, 2012년)‘, ‘Voice Korea 시즌1(Mnet, 2012년)‘ 및 ‘롤러코스터 시즌 1(tvN, 2009년 ~ 2011년)‘의 일부 장면 또는 아이디어를 이용하여 ’개그투나잇 - 쇼 미더 개그(SBS, 2012년)‘, ‘GoShow(SBS, 2012년)‘, ‘오마이갓(SBS플러스, 2011년 ~ 2012년)‘의 일부 장면을 제작하였고, 코미디방송 또는 예능방송의 경우에 시청자에게 익숙한 다른 영상물로부터 소재나 장면, 이미지를 빌려 익살스럽게 표현하는 기법이 널리 사용되고 있다.

㈐ 원고가 피고를 상대로 제소한 것이 언론 등을 통하여 알려진 이후 ㈜에이치에스애드는 2013. 6. 28. 원고 영상물의 내레이션을 하는 성우를 고용하여 원고 영상물의 내레이션과 유사한 어조의 설명을 라디오 광고에 사용하는 허락의 대가로 원고에게 200만 원을 지급하는 내용의 계약을 원고와 체결하였고, 문화방송은 2014. 1. 23. 문화방송이 제작하는 드라마 ‘앙큼한 돌싱녀’에서 원고 영상물을 연상시키는 내용을 촬영하기에 앞서 원고의 협조를 구하는 공문을 보냈다.

㈑ 방송영상물의 제작 방법과 기법 등이 담긴 ‘포맷 바이블’은 방송 제작사 사이에 거래되는데, 원고 영상물에 관한 포맷 바이블에는 출연자의 선정, 녹화, 편집과정에 관한 내용과 그에 필요한 사항들이 실려 있다.

In order to establish a tort under Article 750 of the Civil Act, if the interests of legal protection were violated, not limited to cases where the rights were infringed, such as copyright, and where the interests of legal protection were violated, it shall be interpreted that tort has been established. Therefore, an act of using the outcomes established by a competitor with considerable effort and investment without permission for one’s own business in violation of business ethics or fair competition order, thereby gaining unjust profits and infringing on competitor’s interests of legal protection, constitutes an act of unfair competition and constitutes a tort under the Civil Act (see Supreme Court Order 2008Ma1541, Aug. 25, 2010; Supreme Court Decision 2010Da20044, Mar. 29, 2012). Furthermore, the damages system based on a tort is an act of infringing on the Plaintiff’s property rights or interests, which would not have been proven to the extent that it would not have any effect on the Plaintiff’s property rights or interests, even if there were no specific grounds for infringement on the Plaintiff’s property rights or property rights (see Supreme Court Decision 20000Do.).

According to the above premise facts and the above facts, Plaintiff’s video works constitute the outcome of construction of considerable effort and investment. However, unlike Plaintiff’s video works, etc., it is merely an idea of broadcast program progress method created on the basis that they were widely used in the existing video works. In addition, even if Defendant, who is in a competitive relationship with the Plaintiff, as a broadcasting business entity, partly contributed to Plaintiff’s own cost and effort based on Defendant’s independent idea, and thus, Defendant 1 and 2 produced Defendant’s video works with diverse creative elements not non-existent in Plaintiff’s video works. Thus, it is difficult to readily conclude that Defendant’s creative act constitutes an obvious unfair act contrary to business ethics or fair competition order, and contrary to Plaintiff’s video works, Defendant 1 and 2 did not appear to have any legal value to protect Plaintiff’s Plaintiff’s broadcasting business profit or business profit as an advertisement subject to Plaintiff’s video works, nor did Defendant 1 and 2 have any legal value to protect Plaintiff’s broadcasting business profit through Defendant 2’s broadcast or adult broadcast program.

Therefore, the Plaintiff’s assertion, which is premised on the premise that the Defendant’s production and broadcasting or transmission of Defendant’s video works using the name similar to the Plaintiff’s certain materials, pages, ideas or images, and their titles constitute an illegal act as an illegal competition act, or that the Plaintiff actually suffered loss due to such an act by the Defendant, is without merit.

4. Conclusion

Therefore, the plaintiff's claim is without merit. The judgment of the court of first instance which dismissed the plaintiff's claim is just, and the plaintiff's appeal is dismissed as it is without merit.

[Attachment]

Judges Lee Dong-sung (Presiding Judge)