[1] In a case where goods manufactured or sold overseas and goods manufactured or sold by a domestic exclusive licensee are not in quality differences or sources are not the same, and domestic and foreign trademark rights holders are not in a joint control relationship, whether concurrent imports of authentic goods are allowed (negative)

[2] The case holding that the crime of infringement of trademark rights cannot be justified, even though it was erroneous that the imported and sold counterfeit goods constituted concurrent imports of authentic goods

[1] After the completion of the registration, a domestic exclusive licensee manufactured and sold the clothing on which a trademark is attached in Korea and engaged in activities such as publicity and advertising for the product at many expenses. Among the clothing with the same trademark sold overseas, there are not a lot of goods manufactured and sold in a third country with low personnel expenses, other than the United States, in addition to the clothing with the same trademark sold overseas. In the absence of special relationship between the domestic exclusive licensee and the trademark holder, other than the contractual relationship under the domestic exclusive license establishment, or between the domestic exclusive licensee and the domestic exclusive licensee, there is no difference in quality between the goods manufactured and sold overseas and the goods manufactured and sold abroad and the goods manufactured and sold by the domestic exclusive licensee, or there is little concern that the domestic exclusive licensee and the domestic exclusive licensee might abuse the trademark right in the joint control relationship, and in such a case, it is not permitted to use the so-called authentic goods as it infringes on the domestic exclusive license.

[2] The case holding that even if the defendant mispers the defendant's mistake of imported goods as a genuine product, and made a mistake that his act is not a crime by believing that concurrent imports are permitted, the defendant's arbitrary belief without any measures such as seeking expert advice as to whether the act of import constitutes an infringement upon the domestic exclusive license, it is nothing more than the defendant's arbitrary belief of such an act, and therefore, it is difficult to see that there is a justifiable reason, and therefore, the defendant's act does not constitute a trademark infringement or a crime of infringement cannot be justified.

[1] Article 2 (1) 6 (b) and Article 93 of the Trademark Act / [2] Article 2 (1) 6 (b) and Article 93 of the Trademark Act

Defendant

Defendant

Attorney Lee Jin-woo

Suwon District Court Decision 96No126 delivered on August 8, 1996

The appeal is dismissed.

The defendant's defense counsel's grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the second and fourth grounds for appeal

Examining the evidence duly examined and adopted by the judgment of the court of first instance in light of the records, it is sufficient to recognize the fact that the defendant imported 2,050 points from a company operating a Korean Twit-ro trademark with a trademark registered in a domestic exclusive license from the "U.S.A." and completed a registration for the establishment of a domestic exclusive license from the "Man-ro Cambodia Co., Ltd. (hereinafter referred to as "Man-ro".)" (hereinafter referred to as "Man-ro), and sold in Korea as shown in the judgment of the court of first instance, since it is sufficient to recognize the fact that the goods of this case are authentic goods and whether the exclusive license for domestic use is granted, as alleged in the grounds of appeal, by designating the rules of evidence or by misapprehending the relevant legal principles. All arguments are without merit.

2. On the first and third grounds for appeal

According to the relevant evidence and the record, as seen above, Japan had completed the registration as a domestic exclusive licensee and engaged in activities such as publicity and advertising for the products in Korea with many expenses while manufacturing and selling the products. Among the clothing with the same trademark sold overseas, there are many products manufactured and sold in a third country with low personnel expenses, other than the United States, using an original trademark attachment in the third country with low personnel expenses. Among the clothing with the same trademark sold overseas, it can be known that there is no special relationship, such as the same person or an affiliated company, other than a contractual relationship under the establishment of the domestic exclusive license of this case, between the goods manufactured and sold overseas and the goods manufactured and sold overseas, or the goods manufactured and sold by the domestic exclusive licensee are the same as the goods manufactured and sold, or there is no difference in quality between the goods manufactured and sold overseas and the goods manufactured and sold by the domestic exclusive licensee, and in such a case, it is not permitted to use the so-called exclusive license even if they violate the trademark right in a joint control relationship.

Therefore, as alleged in the grounds of appeal, even if the defendant mispers the imported goods of this case as the authentic goods, and further, even in the case of this case, the defendant believed that concurrent imports are permitted, and thus his act is not a crime, the records show that the defendant's act of import of this case is nothing more than the defendant's arbitrary belief without any measure such as seeking expert advice as to whether the act of import of this case infringes the exclusive license of Korea. Thus, it is difficult to see that there is a justifiable reason, and therefore, the defendant's act does not constitute a trademark infringement or the criminal intent of infringement should not be dismissed on the sole basis of the circumstance as alleged in the ground of appeal. All arguments are without merit.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)