207 Ghana 135782 Damage, Claim

A (61 years old, South)

Attorney Lee Tae-won, Counsel for the plaintiff-appellant

1. Stock company B1;

2. B2 stock companies;

3. B3 (Examine 68, South Korea)

[Defendant-Appellant] Plaintiff 1

Attorney Kang Han-won

May 8, 2009

June 12, 2009

1. All of the Plaintiff’s claims against the Defendants are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The defendants shall pay to the plaintiff 10 million won per annum with 20% interest per annum from the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) Registration of a trademark "X" (hereinafter referred to as "X trademark");

(1) 이탈리아 법인 ■■ ■ (이하 '■'이라 한다)는 X상표를 구 상표법 시행규칙(1987. 7. 7. 상공부령 제720호로 개정되기 전의 것) 제10조 제1항의 별표1 상품류 구분(이하 '지 정상품'이라 한다) 제45류(피복, 장신용품과 조화류 : 머리핀, 보자기, 수건, 손수건, 넥타이, 와이셔츠, 양복 등)에 관하여 1982. 11. 22. 출원하여 1983. 8. 18. 상표등록(이하 'X상표1'이라 한다)을 받았고, 2003. 7. 23. 지정상품의 전환을 신청하여 구 상표법 시행규칙(2004. 5. 1. 산업자원부령 제232호로 개정되기 전의 것) 제6조 제1항의 별표1 지정상품 제14류(메달, 넥타이핀, 귀걸이 등), 제24류(보자기, 직물제수건, 직물제손수건), 제25류(모자, 넥타이, 와이셔츠, 양복, 신사복 등), 제26류(단추, 머리핀 등)를 지정상품으로 전환등록하였다.

(2) After that, the competent administrative agency filed an application on February 5, 1997 with respect to the designated goods No. 26 of the attached Table 1 of Article 6(1) of the former Enforcement Rule of the Trademark Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 83, Feb. 23, 1998; hereinafter the same shall apply) and the registration number No. kk-1 (hereinafter referred to as the "X 2-1"), No. 24 ( direct property labelling, direct property labelling, direct property kyms, direct property kyms, rectangulars, removals, hairs, gyms, gyms and gyms, etc.) with respect to the designated goods No. 26 of the former Enforcement Rule of the Trademark Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 83, Feb. 23, 199; 20k-20k-120, 200k-27.

B. Exclusive license and license agreement of Defendant B1’s X trademark

(1) Defendant B1 Co., Ltd. (hereinafter “Defendant B1”) obtained an exclusive license from the above X trademarks excluding X2-2. As to X trademarks 1, Defendant B1 completed the registration of establishment of each exclusive license on November 5, 2002 with respect to X trademarks 2-3.

(2) On July 25, 2001, Defendant B1 entered into a license agreement with Defendant B2 Co., Ltd. (hereinafter “Defendant B2”) on July 25, 2001 based on exclusive license. The main contents of Defendant B2, the term of validity of the contract, were not only to obtain prior approval from January 1, 2002 to December 31, 2006, but to submit the production and quality inspection data of the contract items, to Defendant B2, as well as to submit the production and sale data of the XPS (TOWSSSSS HET, bath bath, single bath bath, which are possible overlapping with bedclothess) within the Korean territory, instead to obtain exclusive rights on the use and manufacture and sale of the XP, Defendant B1, a minimum amount of 35 million won per year, in the case of goods planning and development, advertising products, Defendant B1, as well as to obtain prior approval from Defendant B1, but also to submit the product and sale data every three months.

Defendant B2 and Defendant B3, on the basis of the above license agreement, on May 2003, on the basis of

Through the national company, the size of which is 230cm x 180cm, and is 1,820cm of textile material with X-mark (hereinafter referred to as "in this case") 1,820cm, and was manufactured and imported, and sold all of them to B2 sales agencies or other monthly sales stores from around that time to the end of 2003.

라. '♥♥' 상표(이하 '이 사건 상표'라 한다)의 등록 및 X상표 무효심결

(1) The plaintiff, on June 17, 1992, registered the trademark as the registration number No. kk-k-k on June 17, 1992 (the conversion registration of the product portion on October 9, 2003, the designated goods of this case was made by C with the farmer, consignee, bet, kk, locker, bet, bet, bet, bet, 24 lines (excluding shower), plastic bags (excluding shower), plastic bags (excluding shower), and plastic bags (excluding shower), but the trademark of this case was transferred from C and registered on November 20, 202 without any actual usage.

(2) After acquiring the trademark of this case, the Plaintiff filed a lawsuit against the competent administrative agency to revoke the trademark registration of X trademarks 2-1,2, and3 (hereinafter referred to as X trademarks 2) among X trademarks with the Intellectual Property Tribunal (hereinafter referred to as "X trademarks 2"), and the said X trademark 2 was rendered a trial decision to invalidate the trademark registration (hereinafter referred to as "the trial decision to invalidate the trademark of this case") on the ground that the trademark registration was a subsequent application similar to the trademark of this case (as to the X trademarks 2-1 on June 20, 2003; as to the X trademarks 2-2 on September 24, 2003; as to the X trademarks 2-3 on September 6, 2003, the competent administrative agency rejected the trial decision to revoke the trademark registration of this case against the above invalidation trial decision, but the final appeal was dismissed on December 19, 203 as to the trademark of this case, which became final and conclusive on March 12, 2004 and the trademark of this case.

【Ground of recognition】 The fact that there is no dispute, Gap 1 through 8 (including each number), Eul 1 through 3 (including each number), the result of the fact inquiry about the head of the SS customs office, the head of the Y, the head of the YY office, and the head of the KR, the purport of the whole pleadings.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff asserts to the purport that since the decision on invalidation of the trademark in this case became final and conclusive and the validity of X trademark registration was retroactively invalidated, the facts that the decision on invalidation was requested, and the trademark rights were published in the Trademark Gazette and the original register, etc., as well as the person who infringed the trademark rights pursuant to Article 68 of the Trademark Act was presumed to have been intentional, Defendant B2 and B3 manufacture the title of this case identical or similar to X-E trademark that was designated items of the trademark in this case, and continued to sell the title of this case after July 22, 2004, the decision on invalidation of the trademark in this case became final and conclusive, and Defendant B1 conspired or aids the above Defendants to infringe the trademark rights in this case by allowing the above Defendants to manufacture and sell the title of this case by establishing the right to use and selling the design and quality inspection, and the profits acquired by the defendants from the infringement of the trademark rights in this case and the profits acquired by the defendants from the infringement of the trademark rights in this case as compensation for damages.

(2) The Defendants asserted to the effect that, in light of ① the size and form separate from the material of 100% cotton and the process of sale and distribution only at the B2 agency or a dry sales store, the use of the trademark of this case is large, i.e., large, e., a variety of items designated as the trademark of this case, and thus cannot be deemed as identical or similar to e.g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., g., e., e., e., e., e., e., e., e., e., e., e., e., t., t.

B. Determination

(1) Determination as to whether the product of this case is similar to the product of this case and the defendants' relevant arguments

In order to recognize the infringement of the trademark right of this case pursuant to Article 66 (1) of the Trademark Act, the plaintiff asserts large strings, the defendant argued large strings, and there is a problem as to whether the title of this case is similar to the designated goods of this case (generally, it is difficult to view the title of this case made of large strings, in that it enters the plant within strings, etc.). Considering the above facts and the whole purport of arguments in light of the above facts, it is difficult to see that the direct upper floor of this case was manufactured with 10% of the raw materials of this case with a large strings or large strings, which are the same as that of ordinary strings by defendant B2 who produces a specialized strings, and most of it is difficult to see that the direct upper floor of this case was purchased with a large strings or with a large strings or with a large strings or with a large strings or with a large strings.

Therefore, the defendants' assertion that the trademark right holder, exclusive licensee, Defendant B1, X-E mark 1, which had been registered prior to the trademark of this case on the premise that the title of this case was several cases, and continues to exist effectively due to the lack of a final decision of invalidation, is not acceptable. The defendants' assertion that the trademark attached and used to this case is against X-E mark 1 is also difficult.

(2) Determination as to the claim for damages

① As seen earlier, as a result, the trademark used in the instant directs is called X-2, which includes bedclothess, etc. as designated goods, as a result of which it cannot be seen as a good similar to the instant directs, and as such, it is a matter of whether the use of the said trademark by the Defendants and the act of selling the instant directs is established or not, since the final judgment on invalidation was finalized on July 22, 2004.

Meanwhile, Defendant B1’s act of setting up the right to use X-2 against Defendant B2 cannot be deemed as an infringement of trademark rights in light of the provisions of Article 66 of the Trademark Act (see, e.g., Supreme Court Decision 2002Da58594, Sept. 24, 2004). However, if Defendant B2 and Defendant B3’s act were to be considered as an infringement of the trademark right of this case, it is reasonable to view that the infringement was caused by Defendant B1’s intentional or negligent act set up against the said Defendants, and thus, Defendant B1 also becomes jointly and severally liable with the said Defendants.

② Therefore, as to whether Defendant B2 and B3 committed an infringement on the trademark right of this case, the Plaintiff asserted that the above Defendants infringed on the trademark right by manufacturing and selling the title of this case even after July 22, 2002, but it is insufficient to recognize that the Defendants manufactured or directly sold the title of this case even after the above confirmation date, and there is no other evidence to prove otherwise, this part of the Plaintiff’s assertion is without merit. 3 Next, if the decision to invalidate the trademark registration becomes final and conclusive, the trademark right of this case cannot be presumed to have been established from the beginning based on the retroactive effect of the trademark law, and as long as X2 became final and conclusive as to the trademark right of this case, the trademark right of this case, which was already registered in accordance with the provisions of Article 96 of the Trademark Act, is presumed to have been infringed on the trademark right of this case, and thus, if the Defendants were to have used the registered trademark in accordance with the provisions of Article 90 of the Trademark Act, it is reasonable to deem that the above trademark right of this case was infringed on the Plaintiff’s trademark right of this case.

The intent of the infringer of the registered trademark is presumed to be presumed to have been committed by the above defendants. Since there is no assertion or proof as to the fact that the plaintiff used the trademark of this case for the purpose of attaching it to any product, the plaintiff's intentional act cannot be presumed to have been presumed to have been committed by the defendants. (Therefore, the plaintiff's assertion that the plaintiff's intentional act is presumed to have been committed by the defendants on the ground of only the above provision of the Trademark Act), each description of Gap 1 through 10 (each number), and the fact that the plaintiff's claim for the trademark of this case or the invalidation trial of this case was entered in the public book or the trademark registration register, it is insufficient to recognize that the above defendants were intentional or negligent as to the infringement of the trademark of this case, and there is no other evidence to prove that the plaintiff notified the defendants of the contents of the invalidation trial of this case or that the defendants knew or could have known the invalidation trial of this case. Accordingly, this part of the plaintiff

④ Even if it is not so, the provision of Article 67(3) of the Trademark Act stipulates the amount of damages in consideration of the difficulty in proving the amount of damages caused by the infringement of trademark rights, etc., and cannot be seen as the purport of presumptioning damages in the event of infringement of trademark rights, etc... Thus, in order for a trademark right holder to be subject to the above provision, it is necessary to assert and prove the amount of damages caused by his own use of the registered trademark as a business and the amount of ordinary use of the registered trademark. Since the trademark of this case was registered since June 17, 192, the fact that there was no actual use of the registered trademark until November 20, 202, when the plaintiff acquired the trademark right until November 20, 202, the time when the trademark right holder acquired the trademark, etc., is difficult to prove the amount of damages caused by the infringement of trademark rights, and there is no reason to acknowledge the facts that the plaintiff used the trademark of this case as the trademark of this case and the trademark of this case as the whole.

(3) Determination on the claim for restitution of unjust enrichment

On the other hand, the right to request the return of unjust enrichment is established in cases where a person gains a profit from another person's property or labor without any legal ground and causes damage to another person. The defendants use X trademark 2, not the plaintiff's right holder. As seen earlier, since the registration of June 17, 1992, the trademark of this case did not have any actual usage of the trademark until November 20, 202, the time when the plaintiff acquired the trademark right, and there was no evidence to prove that the plaintiff used the trademark of this case since the time when X trademark 2 was used, and therefore, the defendants cannot be deemed to have used the plaintiff's property or labor. Accordingly, even if the defendants obtained a profit from using X trademark 2, it cannot be deemed to have been unjust enrichment in relation to the plaintiff. The plaintiff's assertion on this premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judges Nationwide