Newcom Co., Ltd. (Law Firm Woo, Attorney Lee Tae-tae, Counsel for the defendant-appellant)

Defendant (Law Firm Ear excellent, Attorneys Park Jin-sik, Counsel for the defendant-appellant)

October 26, 2011

Seoul Central District Court Decision 2010Gahap9946 Decided April 22, 2011

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

All costs of the lawsuit shall be borne by the plaintiff.

1. The defendant shall not use letters containing each of the names listed in the separate sheet and each of the above names as the title of musical performances, or use each of the above letters in signboards, placards, carbags, brochures, posters, posters, Internet homepages, advertising advertisements or viewing tickets, trade documents.

2. The defendant shall discard the articles specified in paragraph (1) that are kept or used in his office or place of business.

(Plaintiffs have reduced their claims in the first instance)

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings as stated in Gap evidence Nos. 5, 6, 8, 9, 11, 14, 15, 16, 20, 22, 26, 33, 38, and Eul evidence No. 6 (including each number):

A. The Plaintiff is running a public performance planning and production business, etc., and the English company, the “Regrown Group” (hereinafter “RUG”) is a subsidiary of the RUG, which runs the business of producing and related to the “CATS”, and further carries on the business of producing and running the ice Pycife (CATSS).

B. Around 2003, around March 2008, and around December 10, 2010, the Plaintiff entered into a public performance license agreement with the RUG on the musical area (hereinafter “matts”) of the title “vatts” (hereinafter “matts”), respectively, from around 2003 to around 2008, and produced and performed nationwide performance in Seoul, Suwon, Daegu, Busan, Daejeon, and Gwangju, etc. on 191, December 2003; 58, 2004; 140, 140, 207, 172, and 2008, in English, respectively.

C. On May 19, 2010, the Plaintiff was granted an extension of the license period on the performance, etc. of musical disease, etc. from the RUG Pacific until July 2015. On the other hand, on January 17, 2011, the Plaintiff revised the terms of the contract with the RUG during the first instance trial on December 10, 201, that “CATSS” (hereinafter referred to as “CATS’s Korean and English marks”) was granted an exclusive right to use the instant mark for the advertisement and public relations of performance.

D. On the other hand, from around 2003 to June 201, the Defendant produced and performed the musical elements of “children’s disease”, “non-school children’s disease”, or “dibly children’s disease” in major cities across the country.

2. Summary of the plaintiff's assertion

A. The Plaintiff was granted the exclusive right of performance on musical disease and the exclusive right of use on the instant mark from the RUG.

B. However, the Defendant’s act of confusion as to the subject of goods under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) or act of confusion as to the subject of goods under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act by including or using similar goods marks or business marks, which

C. In addition, the defendant used the well-known and well-known mark of this case, thereby impairing the distinctiveness under Article 2 subparag. 1 (c) of the Unfair Competition Prevention Act (the plaintiff added this part of the claim to the court below).

D. Accordingly, pursuant to Article 4 of the Unfair Competition Prevention Act, the Plaintiff seeks the prohibition of the use of letters, including each name of this case and each name thereof, in relation to the musical performance produced by the Defendant, and the disuse of articles created in relation thereto.

3. Determination

A. If the Defendant’s use of the instant mark constitutes an unfair competition act alleged by the Plaintiff, the instant mark ought to function as a mark of origin or a mark of identity of the goods or business alleged by the Plaintiff as to the musical disease. In order to function as a mark of identity of one’s own goods or business beyond those used in the name of simply indicating the musical content as to the instant mark, the instant mark should first be used to indicate the source of the goods or business and to recognize the user as a mark of identifying the goods or business and the business of another person.

B. In the instant case, the following facts can be acknowledged in full view of each of the statements in evidence Nos. 1, 5, 6, 20, 25, and 38, including the purport of the entire pleadings.

(1) Museum-related disease is a musical organ produced by Llod Ssum (Old Possum) and Llokys (Old Psum) on the basis of the Guidelines to become a mutually friendly garment. The main content of this is to express a variety of characters through dancing and singing. From May 1981 to May 200, the public performance in the United Kingdom was rhym from New York to 20 years.

(2) The instant mark directly uses the “Cat’s multiple types of “Cat” and its Korean language, which are the English expression of “Cat”, a character appearing in the community-style disease.

(3) The musical disease, the contents of which are the Korean language of the Republic of Korea, was produced and performed in Korea by a third party from before it was possible for the Plaintiff to conclude a license agreement with the RUG (whether the performance was infringed on the copyright of the musical disease, is irrelevant to the issues of this case). As seen in the foregoing basic facts, the Plaintiff, from 2003 to 2008, planned the performance in Korea of the musical disease in English only, and the musical disease in Korean was produced and performed from 2008 to 2008, while the Defendant, from 2003, produced and performed the performance in Korean language, “children’s musical disease.”

(4) The Plaintiff continued to obtain the Plaintiff’s exclusive right to use the instant mark from the first instance court on January 201, and continued to obtain the Plaintiff’s exclusive right to use the instant mark from the DaUG on December 10, 201, and partly amended the license agreement with the DaUG on December 10, 2010, but the RoUG still has to decide whether to approve the Plaintiff’s exclusive right to use the instant mark at an absolute discretion (Article 7(2)2 of the DaUG on January 17, 201).

(5) Meanwhile, the Plaintiff did not produce and perform other performing performances under the name of expulsion or representative, such as community-style disease, and on the other hand, other than community-style disease, such as “the 42 Lao,” “Brogwawawa 42 Ga,” “Irogs,” “Irogs,” “Irogs Schlage,” and “masts and gys,” and continuously performed performance from around 2003, and there was no indication on the performance advertisement or publicity materials.

C. Considering the circumstances that can be seen through the above facts, namely, that the mark of this case is the direct expression of the musical character of the main character of the musical disease, and that the time when the mark of this case was used in Korea together with the musical character of the group of the group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group of group.

D. Therefore, the Plaintiff’s claim of this case based on the premise that the mark of this case functions as the mark of goods or business source or identification mark claimed by the Plaintiff is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

[Attachment List omitted]

Judges Lee Ki-taik (Presiding Judge)