Defendant 1 and one other

Oral smoke

Attorney Current status

Defendants are not guilty.

1. Summary of the facts charged in this case

Defendant 1 is the representative director of Defendant 2 Co., Ltd. who imports and sells clothing, etc. from China, and Defendant 2 Co., Ltd. is a corporation established for the purpose of clothing sales business in Gangnam-gu Seoul Metropolitan Government ( Address omitted).

A. Defendant 1:

No person shall transfer or deliver, or import for such purpose, goods identical with or similar to designated goods on which another person's registered trademark or a trademark similar thereto is marked without legitimate use of the trademark.

Nevertheless, around March 20, 2010, the Defendant imported the amount of KRW 635, 127,00,000,000 for domestic sales purposes, which is equivalent to the butane trademark registered with the Korean Intellectual Property Office (No. 1 omitted) (No. 1 omitted in the judgment of the Supreme Court) (No. 9. 7, 2018) by the Baberbertian company registered with the Korean Intellectual Property Office as designated goods from China through the Incheon Customs.

B. Defendant 2 Company:

The above defendant 1, the representative director of the defendant, committed the same act as the mentioned in the preceding paragraph with respect to the corporation's business.

2. Summary of the defendants' and defense counsel's assertion

In regard to this, the Defendants and their defense counsel asserted that even though Defendant 1 used in South Titrts (hereinafter referred to as “the instant mark”) the instant Blus pattern mark was similar to that of South Titrts, the Defendants and their defense counsel merely used the shape of the clus pattern as the primary pattern of South Titrts and thus, it cannot be said that the trademark right of Blus is infringed because it constitutes a design, namely, where the shape similar to the instant Blus pattern is used as part of the design.

3. Determination

However, if a trademark is used on goods identical with or similar to the designated goods, it shall not be deemed an act infringing another person's trademark right. However, even if it is used on another person's registered trademark, it shall not be deemed an act infringing another person's trademark right if it is not intended to indicate the source which is the essential function of the trademark, and thus it cannot be perceived as using the trademark. In order to determine whether it is being used as a trademark, it shall be determined in full view of the type of the use of the mark, such as the relation with the goods, the location and size of the goods, etc. indicated, the well-known and well-knownness of the registered trademark, the user's intent of use, and circumstances of use, etc., in order to determine whether the mark is being used as an identification mark. Even if it is used on a mark similar to another person's registered trademark, it shall not be deemed an act infringing another person's trademark right if it cannot be perceived as using the trademark as a trademark due to its use only as its original function (see Supreme Court Decisions 2002Hu1324, Feb. 14, 2004).

In this case, according to the examination of whether the defendant used the mark as a trademark in this case, there is a difference in the color, such as butber trademark and the mark on the trademark register (registration No. 1 omitted) with several red lines compared to the former after the latter, but the examination is recognized as a similar point to the extent that, in the overall appearance, the overall appearance of the mark is identical with the cross-section, number, and arrangement order of lines and red lines, it may cause confusion as to the source of goods to consumers.

However, in light of the above evidence and the evidence submitted by the defendant as to the suspect interrogation protocol as to the defendant 1 and the defendant's evidence [one copy of (A), and (2) trademark registration register of the mark (registration number 2 omitted), the defendant 1 has completed trademark registration with the product registration number (registration number 2 omitted) with respect to the trademark of SYBIE as well as the product registration number (registration number 2 omitted), and it is hard for the prosecutor to find the defendant as the defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's goods to use the above "SYBIE mark" as its designated goods, and it is hard for the defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's goods to use it on the back side and chest's own.

4. Conclusion

Therefore, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges Lee Sung-sung