2011Da77269 Prohibited from Unfair Competitive Act

A Educational Foundation

A person shall be appointed.

Seoul High Court Decision 2011Na13496 Decided August 25, 2011

May 16, 2014

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") provides that "an act of causing confusion with another person's business facilities or activities by using a mark identical or similar to another person's name, trade name, or emblem widely known in the Republic of Korea, or any other mark indicating another person's business."

In this context, "mark indicating the business of another person widely known in the Republic of Korea" means a case where traders or consumers recognize a specific business from another business through it within a certain scope or domestically and widely known through it. Whether it is a "mark indicating the business of another person" is one of the criteria for the use period, method, pattern, quantity of use, scope of transaction, etc., and whether it is objectively widely known under the social norms. Whether it is "the similarity of business marks" includes two business marks used for the same kind of business in terms of appearance, name, concept, etc., and the overall, objective, and separation of the two business marks, and the determination of whether it is likely to mislead or confuse the business origin of another person, based on the awareness that general traders or consumers feel with the same business mark. In addition, the determination of whether it constitutes "the act of causing confusion with other person's business facilities or activities" includes not only the case where the business mark itself is mistaken, but also the case where it is identical with the other person's business mark widely known in the Republic of Korea, and whether it is identical with or similar to the other person's business mark.

12. Supreme Court Decision 2011Da9822 Decided 12, 22.

2. According to the reasoning of the judgment below and the records, the plaintiff operated C University since 1930 and used D'(hereinafter referred to as "the business mark of this case")'s business activities related to education, and C University discharges approximately 145, 870 university graduates and 35,561 graduate school graduates until February 201, and it accounts for the location of the Korean highest female educational institution with 117 weeks old on May 31, 2003, the defendant's act of using C University's business mark's name and 73.9% of the business mark of this case's business mark', which was executed around October 204, as well as the above business mark's business mark's name and 97 business mark', and the defendant's act of using C University's business mark's name and 70% of the business mark of this case's business mark' is likely to be confused with the plaintiff's business mark's business mark's general performance and service mark's use.

Therefore, the defendant's business activity using the business mark "E" constitutes an unfair competition act under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the same and similarity of business marks and the possibility of confusion among business entities, as alleged in the grounds of appeal.

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 Lee Sang-hoon

Justices Shin Young-young

Justices Kim Yong-deok

Justices Kim So-young