Korea Light Frant Co., Ltd. (Law Firm Pacific, Attorneys Oyang-ho et al., Counsel for the defendant-appellant)

2 high-ranking two persons abroad;

may 3, 2006

Seoul Central District Court Decision 2005Gahap4494 Delivered on August 24, 2005

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked.

The Defendants shall not import, transfer, or dispose of the goods listed in the attached Table 1, or distribute them for sale during the market. In the event that the Defendants violate the above order, the Defendants shall pay to the Plaintiff the enforcement fine of KRW 100,000 per each item of the goods listed in the attached Table 1 imported, disposed or distributed.

1. Basic facts

The following facts may be acknowledged in the absence of dispute between the parties, or by integrating the whole purport of the pleadings in each entry in Gap evidence of 1 to 14, Eul evidence of 1 to 7 (including each number):

A. Status of the Plaintiff and the Defendants

(1) Nonparty Avidson’s Davidson’s & Ass. Inc.’) is a registered trademark right holder in the U.S. with respect to marks listed in the attached Table 2 (hereinafter “instant trademark”) in the U.S. (registration No. 281608, Sept. 7, 2004 using the instant trademark from March 31, 1998) and the Blzard Enb, the parent company of the instant trademark, as the program copyright owner of the Lone Star-ray’s computer software (hereinafter “Sone Star-ray Game”) for recreation in the instant case (hereinafter “the instant trademark”), which is a program copyright owner of the Lone Star-ray’s computer software with the instant trademark, around 198, he distributes it to Nonparty Lone Star Game, a non-party Lone Star game, through manufacturing the instant trademark’s game work.

(2) On March 27, 2001, the above Isdson's Rovidson's Rocop (Dvidson's & Ass. Inc.) registered the trademark registration with the trademark registration number No. 0492769, a computer software in the form of an entertainment game, which can be conducted on the Internet computer network, on the motion picture, street, audio tape, video, and Comact disc with respect to the trademark of this case, by using the motion picture, street, audio tape, video, and compact disc with respect to the trademark of this case to be designated goods on the Korean Intellectual Property Office of Korea.

(3) From January 22, 1998, the Plaintiff, a company running a computer software sales business, entered into a domestic monopoly sales contract with the above Benzard's global distribution authority, which is the above Benzard's global distribution authority, and completed a contract for domestic monopoly sales with the above Benditer's game, and completed an exclusive license for the designated goods from the above Benzard's game from the above Benzard's company to directly manufacture and sell Lone Star's game from the above Benzard's company, and completed an exclusive license for the designated goods from the above Benzard's game from the above Benzard's global distribution authority to the above Benzard's online distribution authority, and completed the exclusive license for the designated goods from the above Benzard's game from the above Benzard's online distribution authority to the Korean Intellectual Property Office from January 22, 2002 to 20.1.21.21.

(4) On the other hand, around March 2005, the above Blozard Enbrid (Blzard Enb. Inc..) was changed to Blzard Enbrid (Blzard Enb. Inc........) as a result of the combination of Elobson’s Elobane Elobane (Dvidson’s and Assolorates. Inc.......) in the U.S. and the trademark right holder in the Republic of Korea regarding the trademark of this case, the registration of the transfer of rights was completed on March 9, 2005 with the receipt number 2005-5041645).

The Plaintiff entered into a contract to establish an exclusive license agreement with the owner of the trademark of this case with the period from the above Blozarder Ebrid on March 11, 2005 to the period from April 1, 2005 to December 31, 2005, and completed the registration of the exclusive license with the Korean Intellectual Property Office on March 11, 2005.

(5) Defendant Ko Byung-cil operated the business of importing and selling computer software in the trade name called New Twitmanb, and Defendant Yellowle runs the business of importing and selling computer software in the trade name called Burd, and Defendant Kim Jong-chan is engaged in the business related to the export and import of cargo.

(b) Current status of Lone Star game products;

(1) Lone Star-Pet game products are divided into “ Costafree (original board)”, “ Costafree (Blud, Expansion board)” and “ Costafree (the combination of main board, original board and expansion board). Since the launch of Lone Star-Pet around 1998, a large number of domestic users have enjoyed the same until eight years have passed since the launch of the game products. In particular, a large number of domestic users have passed since the launch of the game products in Korea (in the U.S., around 20 and 3 years ago).

(2) The unsatisf game, which leads a whole world character, is due to the use of a game through a free online service site called a platformnet with users in the world through the whole world, online, and by the formation of a platform or team. Using these characteristics, all the world’s prox money online is engaging in a platform for the off-line game.

(3) In Korea, as the PCs were disseminated in full scale in around 1998, the Pception and Costaccom games came to obtain explosive rise through mutual interaction, and even through cable costs games, the Pception broadcast was made, while the Pception took place through cable costs-based relay broadcasting, the authorization level was maintained.

C. The concurrent income of Defendant Yellowle and Kim Sang-soo

(1) On December 20, 2005, Defendant Yellow and Kim Sang-sik entered into a contract to import 6,000 Mostex from the Moscific Bits Inc. (hereinafter “instant product”) at USD 5.625 per unit of Cost, and imported the instant product to the Macif warehouse on January 4, 2005.

(2) However, on January 5, 2005, the Plaintiff requested the head of Incheon Airport Customs Office, the head of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the Incheon Airport Customs to withhold import clearance of the instant products, along with a payment guarantee to secure the Plaintiff’s damages incurred by the import applicant. The head of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of

(3) The above Mastro Corsc is selling online game products of USD 19.95 on its own Internet site, www.NothringButS draft.com, the Lone Star is selling online game products of USD 19.95 on an online basis, and for those who purchase them in large quantities such as Defendant Yellow and Kim upper, they are selling USD 5.625 on a large quantity of products.

2. Determination as to the claim against the defendant Yleong and Kim Jong-young

A. Determination on the cause of the claim

According to the above facts of recognition, Defendant Yellow, and Kim Jong-sik were to have infringed upon the Plaintiff’s exclusive license by importing the instant product with which the Plaintiff had exclusive license in the Republic of Korea, and thus, Defendant Yellow and Kim Jong-sik have a duty not to infringe on the Plaintiff’s exclusive license, barring any special circumstance.

B. Determination as to the concurrent import defenses of Defendant Yellow-gu and Kim Jong-gu

As to this, Defendant Yellow and Kim Jong-sik asserted that the act of importing the product of this case constitutes concurrent imports of the product of this case, and thus lawful.

In order to ensure that an act of importing goods identical or similar to the designated goods on which a trademark identical or similar to the domestically registered trademark is attached does not constitute an infringement of the registered trademark right, the trademark should have been attached to the imported goods by the foreign trademark right holder or the legitimate user of the trademark right, and there should be cases where the foreign trademark right holder or the legitimate user of the trademark right has close legal or economic relations between the foreign trademark right holder and the registered trademark right holder of the Republic of Korea, or where the trademark attached to the above imported goods can be seen as indicating the same source as the registered trademark of the Republic of Korea due to other circumstances (see Supreme Court Decision 2002Da61965, Jun. 9

With respect to this case, the trademark owner of a foreign country and the trademark owner of the trademark of this case are identical to the above Blveter Ez. In light of the above facts, according to the evidence and the purport of the whole pleadings, Kim Jong-soo purchased the product of this case from Mostson Sc. and imported domestically from the Republic of Korea, the trademark owner of this case is not entitled to sell the trademark of this case to the above Blveter game of this case, and the trademark owner of this case is not entitled to sell the trademark of this case to the above Blveter game of this case, and the trademark owner of this case is not entitled to use the trademark of this case from each of the above Blveter game of this case to sell the trademark of this case to the Internet or users of this case through their own online retail method or to recognize that the trademark owner of this case is not entitled to use the trademark of this case from each of the above Elveter game of this case.

C. Judgment on the Plaintiff’s assertion

The plaintiff's argument on this issue will be examined in turn.

(1) First of all, the Plaintiff asserts that, with respect to goods manufactured and sold in the Republic of Korea from the above Blzard Ezarder (OC), the Plaintiff directly manufactured and sold Lone Star game products in Korea. The Plaintiff asserts that, with respect to goods manufactured and sold in Korea by a domestic exclusive licensee, the parallel import of authentic goods should be prohibited on the grounds that there are differences in quality between the goods manufactured and sold by a foreign trademark right holder (hereinafter “import goods”) and the goods manufactured and sold by a domestic exclusive licensee (hereinafter “domestic trademark goods”) and the goods manufactured and sold by a foreign exclusive licensee.

살피건대, 국내외 상표권자가 동일인이거나 그와 동일시할 수 있는 특수한 관계가 있는 경우 일반적으로 상표권자는 그 전용사용권자에 대하여 자신의 상표에 대한 평가를 유지하기 위하여 기술지도, 품질검사, 제품의 디자인 등에 대하여 일정한 조건을 준수할 것을 정하는 등 직접적 또는 간접적으로 상품의 품질관리를 하게 되고, 수입품과 국내상표품의 상표가 상표권설정계약 또는 다른 수단에 의하여 동일한 상표권자의 상표라는 동일한 근원에서 나오게 되는 점에 비추어 보면, 이 사건에 있어서 국내 전용사용권자인 원고가 국내에서 상품을 직접 제조하여 판매하고 있다는 이유만으로는 국내상표품과 수입품 사이에 그 품질의 차이가 있다든가 또는 그 출처가 동일하지 않다고 볼 수 없고, 구체적으로 국내상표품과 수입품을 비교하여 그 품질에 차이가 있는지, 국내 전용사용권자가 독자적으로 국내상표품을 제조, 판매함으로써 그들 나름대로의 보호받을 만한 신용(good will)을 형성하는 등 그 상표가 표시하는 출처가 다르게 되었는지를 판단하여야 한다고 할 것이다.

Therefore, the plaintiff's assertion that concurrent importation of authentic goods should be prohibited is without merit, as the plaintiff, an exclusive licensee, directly manufactures and sells goods in Korea (However, we will examine whether there is a difference in quality between the product of this case and the plaintiff's product of this case).

(2) Following the Plaintiff: (a) the goods manufactured and sold by the Plaintiff are limited to domestic sales purposes, consisting of Korean factorings; and (b) the Plaintiff provides Korean explanatory note; (c) the Plaintiff establishes a customer support center in the Republic of Korea as an exclusive seller of Lone StarP games and carries out active pet services, such as exchanging defective products or dyping; and (c) in the case of a rating of the total use price of Lone StarP games, the Plaintiff removes the remaining parts of the game’s initial video, such as the face where a person dies or is well injured; and (d) unlike the products sold from foreign countries, sells various parts in line with the deliberation of the Korea Media Rating Board and the characteristics of the domestic market; and (e) the Plaintiff’s products are legally used even in cases where multiple game products are provided for business purposes, such as those of the Plaintiff’s domestic trademark products, and the Defendant’s products, the imported goods, are different from the quality of the products, and thus, the source and quality of the products should be prohibited.

However, concurrent imports are generally permitted since the quality assurance functions of a trademark are met if the quality of goods (import) which are legally distributed by a foreign trademark holder and goods (domestic trademark goods) manufactured and sold by a domestic exclusive licensee are the same. However, if the quality of imported goods and domestic trademark goods differs from that of the imported goods, parallel imports are different from that of the imported goods, and the quality of the goods is different from that of the domestic trademark goods, thereby inducing consumers to misunderstand the difference in quality. However, concurrent imports are prohibited because the difference in quality results in deception between the imported goods and the domestic trademark goods. However, in order to respond to various needs of each country, the difference in quality is permitted to use the same trademark in the domestic trademark goods and the imported goods, and the domestic exclusive licensee to manufacture goods whose quality and form are different from that of the goods indicated by the trademark holder, so the difference in quality and form is within the “permissible scope” of goods indicated by the trademark owner, and if it is not damaged by the quality assurance function, parallel imports are permitted.

In this case, the Plaintiff applied for review in Korean language for the deliberation of the Korea Media Rating Board, including information, indication language, and content related to the Lone Star Game for the deliberation of Korea Media Rating Board. In the case of a rating of the entire use of Lone Star Game, the Plaintiff deleted the remaining parts of the game in Korean language, such as the front image of the game, and changed its color into blue or verification color. The Plaintiff’s establishment of a customer support center to exchange the defective quality of the game products or dym hacking, and the Plaintiff’s alteration of its contents into Korean language, which is not a person or a person’s well-being. The Plaintiff’s alteration of the content of the entire list of the game products, which is not a person holding the right to use the game in Korean, is considered to have been conducted in Korean language. However, the Plaintiff’s alteration of the content of the entire list of the game products, which is not a person holding the right to use the game in Korean, is deemed to have not been permitted to use the entire list of the game products in Korean.

In full view of these circumstances, it cannot be deemed that there is an essential difference in quality between the Plaintiff’s products as domestic trademark goods and the instant products imported (the characteristics of the instant products are usable in the skin, and the features of the domestic trademark products separately provided by the nicotine are different from the type or grade of the goods, and it is difficult to deem the quality of the products itself differs from those of the goods). The above Blzardman, the trademark right holder of the instant trademark, permits the use of a trademark identical to those of the Plaintiff’s products sold in a foreign country, which are domestic trademark goods, in line with domestic circumstances, to produce some changes in the contents indicated on the screen while using the same trademark as those of the Plaintiff’s products sold in a foreign country. The difference in both products is merely a difference within the “permissible scope” of goods indicated as the trademark right holder of the instant trademark, and in such a case, even if the Defendants import the instant products, it is not prejudicial to the function of indicating the place of goods or the function of quality assurance. Therefore, the Plaintiff’s above assertion is without merit.

(3) In addition, the Plaintiff asserts that the same person or affiliated company between the Plaintiff and Blozard Ebrid Co., Ltd. does not have any relation to the same person, and the two companies are only the separate parties to enter into a domestic exclusive license agreement, and the identity of the source between the Plaintiff’s products and the instant products cannot be recognized. Since the Plaintiff’s products and the instant products cannot be recognized as the identity of the source between the Plaintiff’s products and the instant products, a foreign trademark right holder, and the Plaintiff, a domestic exclusive licensee, are unlikely to abuse the instant trademark right in the relationship of joint control and control, and thus, the said Defendants’ concurrent revenues should be prohibited.

According to the above facts, the plaintiff and the trademark right holder, as a result of the above facts, are acknowledged as having no relationship with the same person or its affiliated company, in addition to the fact that they entered into a domestic exclusive license contract between the plaintiff and the trademark right holder, and according to the above evidence and the overall purport of oral argument, foreign countries begin to fall from 2,3 years ago, and their current sales price is less than 20,000 won per unit US$ 19.99,00,000 in Korea. Since Lone Star games were released in around 198, their sales price is 49,00 won per unit, and the plaintiff's exclusive license is also 19,00 won per unit and its sales price is 49,000 won per unit, and the plaintiff's exclusive license cannot be viewed as the plaintiff's exclusive trademark right holder's product's source or possibility to be seen as the plaintiff's trademark right holder's product's source. Thus, in light of the above facts, it cannot be seen as the plaintiff's trademark right holder's product's source and its source.

(4) Lastly, the Plaintiff asserts that concurrent imports should be prohibited because parallel importers permit concurrent imports to be free from the market performance of the exclusive licensee, because they are engaged in the Plaintiff’s active activities such as scam marketing, after-sales services, and scamler’s efforts to revitalize scamblings such as E-sports (e-Ss).

살피건대, 국내 전용사용권자가 많은 비용을 들여 그 제품에 대한 선전, 광고 활동을 하는 등 그들 나름대로의 보호받을 만한 신용(good will)을 형성한 경우에는 이를 보호할 필요가 있으므로 병행수입를 금지하여야 할 것이나, 보호받을 만한 신용이 배포권자인 전용사용권자에 속하는 것이 아니라 원래의 상표권자에 속하는 경우에는 이를 두고 전용사용권자의 시장성과에 무임승차한다고 볼 수 없으므로 병행수입을 금지할 수 없다 할 것인바, 이 사건에서 보건대 앞서 채택한 증거에 의하면 스타크래프트 게임물이 1998년경 출시된 이래 1년 7개월만에 120만 장이 팔릴 정도로 폭발적인 인기를 얻었고, 현재까지도 그 인기가 계속되고 있으며, 이러한 인기에는 원고의 피씨방 마케팅, 이-스포츠(e-sports) 활성화 노력 등이 기여한 부분도 있기는 하지만, 스타크래프트 게임물의 이와 같은 인기는 인터넷 사이트를 통해 전세계 게이머(gamer)들이 동시 접속해 8명까지 멀티플레이를 즐길 수 있도록 지원함으로써 정해진 맵이나 미션의 공략에 만족해야만 했던 기존 게임의 틀을 벗어나 무궁무진한 전략과 전술을 구사할 수 있는 기반을 제공한 스타크래프트 게임물 자체의 특성과 피씨방 형태의 영업이 1998년경부터 성행하게 된 한국적·시대적 여건 등이 작용한 부분도 상당한 것으로 보이는 바, 위와 같은 사정에 의하면, 원고가 국내에서 보호받을 만한 신용(goodwill)을 형성하였다거나 또는 위 피고들이 전용사용권자인 원고의 시장성과에 무임승차한다고 볼 수는 없으므로, 원고의 위 주장 역시 이유 없다.

D. Sub-committee

Therefore, since the concurrent import defense of Defendant Yellow and Kim Jong-sung is well-grounded, the plaintiff's claim seeking the prohibition of trademark infringement against the above Defendants is without merit.

3. Determination as to the claim against Defendant High Military Service

The Plaintiff asserts that Defendant High Military Station imported the instant product and infringed on the Plaintiff’s exclusive license for the instant trademark, and that Defendant High Military Station violated the prohibition on the import, transfer, distribution, and other disposition of the instant product, and the said obligation, the Plaintiff sought enforcement penalty against Defendant High Military Station.

However, according to Gap evidence No. 8, the consignee's name and the consignee's name were entered in "New Innn" as the name of the consignee, but according to Eul evidence No. 1 and No. 2 (including the three numbers), according to the defendant's name and the defendant's High Disease Bureau's name and the defendant's High Disease Bureau entered into a contract to transfer the domain name of "New Innn" as the consignee's name and the consignee's name and the consignee's domicile. However, according to the defendant's records No. 1 and No. 2 (including the three numbers), it is difficult to recognize that the defendant's High Disease's domain ownership was transferred to the defendant Yellow, which is the shopping mall site operated by the defendant's High Disease Bureau on April 28, 2004, and it is difficult to recognize that the defendant's High Disease Bureau changed the defendant's name and the defendant's High Sea's name and the plaintiff's High Sea's name and the defendant's High Sea's name and the defendant's High Sea's No.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and it is so decided as per Disposition by the plaintiff's appeal against the defendants.

[Attachment List omitted]

Judges Dong-dong (Presiding Judge)