(a) Where a pharmacy is opened under the name of “B” which is a pharmacist, whether the “A” shall be deemed the manager or the proprietor of a pharmacy under the Pharmaceutical Affairs Act;

(b) The relationship between "A" and "B" established in Seoul in the name of "B" with "B" and "△△△△△△ Contracting State" established in "B" with "B" with "B" and business interests under the Unfair Competition Prevention Act;

A. According to the provisions of the Pharmaceutical Affairs Act, a proprietor of a pharmacy is a pharmacist who has established a pharmacy. As such, “A” other than a pharmacist opens a pharmacy in the name of “B” and takes part in the management of the pharmacy, which is merely an internal participation in the calculation (economic) relationship, and thus, “A” cannot be deemed as a manager or a proprietor of a pharmacy under the Pharmaceutical Affairs Act.

B. The △△△△△△ Hospital established in Seoul on the name of "A" and "B" in the name of "B" and "B" are different from the scope of the business, such as the type, scope, facilities, and scale of the business, and customers are also likely to confuse the above pharmacies in Seoul with the business of "A" in the above two countries. Thus, the trade name of "B", "B", which infringes on the business interests of the above pharmacies in Seoul, is a legitimate business interest in which "B" can seek protection under the Unfair Competition Prevention Act.

Colonel & Pharmaceutical Corporation

Defendant (Attorney Yu-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 72Na2887 delivered on July 11, 1973

The original judgment is reversed and the case is remanded to the Seoul High Court.

The gist of this case’s ground of appeal is:

First, even though the Plaintiff is not a pharmacist, but is not the nominal owner of the ○○ pharmacy in the instant case, and is not a taxpayer, the lower court held that the Plaintiff recognized the Plaintiff as the operator of the said pharmacy and protected the trade name used in the illegal business without a statement of reasons, which cannot be said to be misunderstanding the laws of the Pharmaceutical Affairs Act and neglecting its judgment.

Second, in the case of preparing drugs at a pharmacy, the name of the pharmacy prepared on the container or package thereof, the name of the pharmacist, etc., and the use of the name of the pharmacy at the signboard of the pharmacy, the window or the window, the specialty of the pharmacy, etc., shall not be deemed to be a mark used for all goods, and the plaintiff and the defendant are different from each other, and the above "○○ pharmacy" is in Seoul, and the plaintiff's management is there no concern that the use of the above trade name by the defendant would infringe on the plaintiff's business interest, and the court below concluded the use of the above trade name by the defendant as an unfair competition act cannot be said to be in violation of the Trademark Act, as it is against the law of unfair competition, or in violation of the rules of evidence.

Third, since the defendant has the exclusive right by registering the trade name "△△ Party", the defendant's mutual use of the trade name is not subject to Article 2 subparagraph 1 subparagraph 2 of the Unfair Competition Prevention Act under Article 7 of the same Act, and it cannot be deemed that there was illegal purpose such as lowering the defendant. The decision that the defendant used the trade name above for the purpose of unfair competition is erroneous in the misunderstanding of the law under Article 7 of the Unfair Competition Prevention Act.

A pharmacy is a place where a pharmacist prepares drugs for the purpose of giving them or where a pharmacist concurrently engages in the drug sales business (Article 2(3) of the Pharmaceutical Affairs Act). (Article 3(1) of the same Act provides that a pharmacy shall not be established unless a pharmacist who has obtained a license from the Minister of Health and Welfare (Article 3(1) of the same Act provides that only the pharmacist who has established the pharmacy may establish the pharmacy, and where it is inevitable to manage the pharmacy, only one pharmacist who has established the pharmacy shall do so with prior approval from the competent administrative agency, as well as one pharmacist who has established the pharmacy. (Article 41, 35, 19, (2) of the same Act provides that a pharmacy shall not be established under the Pharmaceutical Affairs Act, and only a pharmacist who has established the pharmacy shall be prohibited from participating in the pharmaceutical business, because the legislative purport of the above provision is that a pharmacist who has established the pharmacy has a very significant influence on the public health of drugs, and only the pharmacist who has established the pharmacy shall manage the pharmacy by himself/herself under the Pharmaceutical Affairs Act.

Meanwhile, according to Article 2 of the Unfair Competition Prevention Act, a person whose business profit is likely to be infringed due to the act as prescribed in the above can file a claim for the suspension of the act, and the profit as referred to in the above "business profit" is recognized as the value to be protected from the infringement caused by the said act, and it can be said that the right to seek the suspension of the act should be an appropriate business profit that can be justified from the ideology of maintaining the order of sound commercial transactions.

For this case:

1. The plaintiff's assertion

A. If the Plaintiff established the ○○ pharmacy by himself and operated the drug sales business in the name of the Nonparty, or the said pharmacy was only established in the name of the Nonparty, and the actual operator of the said pharmacy is the Plaintiff and the Plaintiff is running the drug sales business in the said pharmacy, such act is deemed as an act that is strictly prohibited under the Pharmaceutical Affairs Act as stated earlier, and the benefit related to the business activity prohibited under the Act is not an unfair business profit that cannot be recognized as the value subject to protection under the Unfair Competition Prevention Act.

B. In addition, if the plaintiff was engaged in the drug sales business in the name of the above non-party's operator who is the founder of the pharmacy and was engaged in the drug sales business in the above non-party's business (this act is prohibited by the Pharmaceutical Affairs Act, however, this act does not belong to the above non-party who is the founder of the pharmacy, and the plaintiff takes part in the drug operation in the calculating merchant (economic aspect) of the pharmacy, the operator of the pharmacy is the above non-party who is the operator of the pharmacy. Thus, in order to claim the infringement of the profits related to the drug operation of the pharmacy and protect the above non-party who is the operator of the pharmacy, the above non-party, who is the operator of the business of the pharmacy, shall be the party concerned. Therefore, in calculating the calculation, the above non-party cannot be viewed as having a legitimate interest in the plaintiff's lawsuit as a legal relation with the third party's external position.

However, according to the facts established by the court below, the plaintiff established this case's pharmacy in the name of the above non-party, and the plaintiff runs the drug sales business in the same pharmacy, and the defendant's pharmacy operated by him.

The original judgment on the business interest of the Plaintiff, which is infringed on by the use of the trade name of △△△ Hospital, is the case where the Plaintiff uses the Plaintiff’s registered trademark and trade name widely recognized in Korea for an improper purpose, thereby causing confusion with the Plaintiff’s business activities by using the same or similar trade name as that of the Plaintiff’s registered trademark and trade name, and the Plaintiff is likely to infringe on the Plaintiff’s business interest.

The defendant's explanation is that the defendant's business operation is likely to be mistaken for the plaintiff's business with the intent to use the credit and economic value of his business, and that the defendant's business is likely to be mistaken for the plaintiff's business for the purpose of unfairly competing with the plaintiff, and the defendant's business is not able to use the trade name to mislead the plaintiff's business owner and thus, the defendant's business owner cannot use the trade name to mislead the plaintiff's business owner. The purport of the statement is that the defendant's business owner's above-mentioned pharmacy is confused as the plaintiff's business owner's business owner's above pharmacy's business profit is likely to be infringed by the plaintiff's business owner's above-mentioned pharmacy (OOO pharmacy)'s business profit. Thus, the plaintiff's above profit cannot be viewed as a legitimate business profit that can be claimed for protection under the Unfair Competition Prevention Act as described above.

2. According to the judgment of the court below, the defendant's trade name "△△△△ Hospital" is indicated in the Acryp signboard and its pharmacy glass at a pharmacy run by him/her, and distributed the name of the pharmacy to general consumers, and the name of the pharmacy was indicated in the sports district medicine seller list as "○○". However, it is unclear whether the defendant merely advertises and advertises the name of the pharmacy operated by him/her for the purpose of widely informing general consumers of such name, or not, as such, it is unclear whether the defendant simply advertises and advertises the name of the pharmacy for the purpose of widely informing the general consumers of the name of the drug in the sports district, and as such, it is not possible to conclude that the defendant's act without clarifying whether the defendant's act constitutes the defendant's business or includes any product handled by him/her, and as such, it is not possible to readily conclude that the defendant's act constitutes trademark infringement.

3. The facts established in the original judgment are based on the fact that the Plaintiff is a juristic person established for the purpose of manufacturing and selling medicines and the incidental business thereto. Thus, even if the Plaintiff was established for the purpose of selling medicines, it cannot be run a business of selling medicines only to those who are entitled to manufacture, export, import, or sell medicines in accordance with the Pharmaceutical Affairs Act, and it cannot be run a preparation or sale of medicines to general consumers like the pharmacy at the pharmacy (Article 27(1) of the Enforcement Rule of the Pharmaceutical Affairs Act, Article 35(1) proviso of the Pharmaceutical Affairs Act, Article 38 of the Pharmaceutical Affairs Act, and Article 27(1) of the Enforcement Rule of the Pharmaceutical Affairs Act, which provides that a pharmacy founder may prepare and sell medicines, and wholesale is prohibited (Article 38 of the same Act, and Article 27(2) of the Enforcement Rule of the Pharmaceutical Affairs Act, which provides that the Plaintiff cannot be determined differently from the Plaintiff’s general pharmacy founder and importer or the Plaintiff’s general pharmacy operator without any special mistake as well as the Plaintiff’s business size and the Plaintiff’s business size.

4. The decision on the unfair competition prevention in the original judgment above 1% of the Unfair Competition Prevention Act is in violation of the Act.

b) there is a defect;

2. The part concerning the infringement of trademark rights and trade names in the judgment below is unclear, but its purport is different from that stated above. Thus, there is a reason to discuss the appeal on these parts. Therefore, the judgment below is reversed pursuant to Articles 400 and 406 (1) of the Civil Procedure Act and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Hong Man-hee (Presiding Justice)