The case affirming the judgment of the court below holding that the trade name of Gap and Eul is the same as its main part, and there is a duty not to use each trade name claimed by Eul under Article 23 of the Commercial Act, on the grounds that it is acknowledged that there is an improper purpose that general consumers might mislead Eul to the business of Eul by reporting Eul's trade name and making it possible for Eul to mistake Eul's own business as the business.

Article 23 of the Commercial Act

Plaintiff (Attorney Cho Ho-ho, Counsel for defendant-appellant)

Defendant (Attorney Park Young-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na13478 Decided August 22, 2006

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the records, the court below is just in holding that the trade name of the plaintiff and the defendant are the same as the main part, and it is closely related to the nature, contents, business method, business area, customer floor, etc. of each business, and ordinary consumers might be mistaken for the business of the plaintiff. Furthermore, since the defendant continued to use the trade name, etc. of "Yandok rice," after entering into a lease contract with the non-party living together with the plaintiff and continued to use the plaintiff's trade name known to neighboring consumers in a new store even though the above lease contract was terminated, the court below did not err in misunderstanding the defendant as to the defendant's business's duty not to use each trade name requested by the plaintiff under Article 23 of the Commercial Act, and there was no error of law such as misconception of facts against the rules of evidence as alleged in the ground for appeal.

2. Regarding ground of appeal No. 2

In light of the records, the court below is just in holding that there is no evidence to acknowledge that the defendant acquired all the business including the existing trade name at the time of leasing the store No. 10 underground of this case from the non-party, and there is no error of law such as misconception of facts due to violation of the rules of evidence

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)