[1] Standard for determining whether the use of a domain name constitutes "use of a trademark" under the Trademark Act, and whether the same legal principle applies to "use of a service mark" (affirmative)

[2] The case affirming the judgment below which acquitted the defendant on the ground that each domain name cannot be deemed to have been used as a service mark under the Trademark Act and it cannot be deemed that Gap infringed Gap's service mark right, in case where the defendant infringed Gap's service mark right by using a variety of domain names similar to Gap's registered service mark

[1] For a trademark infringement to be recognized, a trademark should be used. The term "use of a trademark" under the Trademark Act means an act stipulated in each item of Article 2 (1) 6 of the Trademark Act. The use of a domain name is required to function as a mark indicating the source of goods in light of the overall aspects of the use of the domain name and the contents of the web site screen linked to the domain name in order to constitute the use of the domain name. This legal principle applies likewise to service marks under Article 2 (3) of the Trademark Act.

[2] In a case where the defendant was prosecuted for violation of the Trademark Act on the grounds that he infringed Gap's registered service mark "" or other domain names similar to Gap's registered service mark "" and infringed Gap's service mark rights, the case affirming the judgment below that each of the domain names of this case "www.mamall.com", "www Malmall.com", "mamball.com" and "mamb.com" are registered (hereinafter these domain names are combined with these domain names "each of this case's domain names"), and its Internet users are linked to "maganet", which is the defendant's irregular information site, and it is hard to view that the defendant's domain name "walnet" has a function as "maganet" and it is hard to see that each of the above domain names "walnet" and "walnet" is connected to the web site "S.com", which is the defendant's French goods sales site, and it is hard to see that each of the domain names of this case "walnet" is connected to each web site.

[1] Article 2 (1) 6 and (3) of the Trademark Act / [2] Articles 2 (3) and 93 of the Trademark Act

[1] Supreme Court Decision 2007Da31174 decided Oct. 12, 2007 (Gong2007Ha, 1766) Supreme Court Decision 2006Da51577 decided Sept. 25, 2008 (Gong2008Ha, 1435)

Defendant

Prosecutor

Seoul Central District Court Decision 2010No305 Decided May 19, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. The term "use of a trademark" under the Trademark Act means an act stipulated in each item of Article 2 (1) 6 of the Trademark Act, and in order to constitute the use of a domain name, the use of the domain name must function as the indication of the source of a product in light of transaction norms in full consideration of the pattern of use of the domain name and the contents of the web site screen connected to the domain name in order to constitute the use of the domain name, and such legal principle applies likewise to service marks under Article 2 (3) of the Trademark Act (see, e.g., Supreme Court Decisions 2007Da31174, Oct. 12, 2007; 2006Da515777, Sept. 25, 2008).

2. We examine the above legal principles and records.

The defendant registered the domain name "www.mamall.com", "www Embal.com", "mamball.com", and "mabal.com" (hereinafter these domain names are combined and "each domain name of this case") and the Internet users connect the domain name of this case to "malnet", which is the defendant's irregular information portal site, if one of the domain names of this case is entered into the webbaler's address and the web site of this case, it is difficult to view that each of the above domain names of this case can be connected to "malnet" as the defendant's Buddhist product sales site, and each of the above domain names of this case is connected to the web site of this case, and it is difficult to view that each of the above domain names of this case has the function of "malnet" as the source of inspection, which is the defendant's Buddhist product sales site. On the other hand, it is difficult to see that each of the above domain names of this case is connected to the inspection website's web site of this case.

Therefore, since each domain name of this case cannot be deemed to have been used as a service mark under the Trademark Act, it cannot be said that the defendant infringed the right to service mark "" (registration number 1 omitted) or the registered service mark "(registration number 2 omitted)" (registration number 2 omitted) using the registered service business as "the online Buddhist services sales agency, the Buddhist services sales brokerage business," etc. in the computer network.

In the same purport, the judgment below which acquitted Defendant on the violation of the Trademark Act is just and acceptable, and there is no error in the misapprehension of legal principles as to the use of a service mark as otherwise alleged in the ground of appeal.

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

Justices Park Si-hwan (Presiding Justice)