In a case where a buyer is unable to purchase imported goods from a seller without paying the royalty to a person other than a seller, whether the royalty under Article 19(2) and (5) Subparag. 2 of the Enforcement Decree of the Customs Act constitutes a case where the royalty is paid as the transaction terms of imported goods (affirmative in principle)

Article 19(2) of the Enforcement Decree of the Customs Act provides that the royalty to be added to the actual payment price shall be paid directly or indirectly by the buyer according to the terms and conditions of the transaction in relation to the relevant goods, and Article 19(5) provides that the buyer pays the royalty to a person other than the seller in order to purchase the imported goods according to an agreement between the buyer and the seller in accordance with the agreement between the buyer and the seller.

Even if the buyer does not pay the royalty to a person other than the seller according to the direct agreement between the buyer and the seller, in light of the relationship between the buyer, the seller and the holder of the right, and the terms of the relevant agreement between them, if the buyer fails to pay the royalty to a person other than the seller, it is deemed that the royalty is paid according to the terms and conditions of the imported goods, barring special circumstances.

Article 19(2) and (5)2 of the Enforcement Decree of the Customs Act

ABB Korea Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)

Head of Seoul Customs Office (Law Firm LLC, Attorneys Cho Young-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Nu29591 decided September 5, 2014

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. Regarding ground of appeal No. 1

A. Article 30(1)4 of the former Customs Act (amended by Act No. 10424, Dec. 30, 2010; hereinafter the same) provides that “the amount calculated under the conditions as prescribed by the Presidential Decree, which is paid in return for the use of a trademark right, etc.” as one of the items adjusted by adding the actual payment price to the actual payment price when determining the dutiable value of imported goods. Article 19(2) of the Enforcement Decree of the Customs Act provides that the price for the use of a trademark right, etc. to be added to the actual payment price shall be the amount paid directly or indirectly by the buyer according to the terms and conditions of the transaction in relation to the relevant goods.” Article 30(3)3 provides that “Where the royalty is paid for the trademark right, the relevant goods shall be deemed related to the relevant goods” and Article 30(6) provides that “The Commissioner of the Korea Customs Service shall determine detailed matters necessary for calculating the royalty, other than the provisions of paragraphs (1) through (4).”

B. citing the reasoning of the judgment of the court of first instance, the court below acknowledged the following facts: ① The plaintiff is a wholly owned subsidiary of AB AB AB, ABO, etc. (hereinafter “AB”) from December 1, 2005 to July 2, 2009: (a) the plaintiff imported goods of this case from AB AB, AB, BB, Y, etc. (hereinafter “AB-related company”); (b) the plaintiff entered into a trademark use agreement with AB on June 30, 197; and (c) the trademark price for the goods of this case imported on October 8, 2007 by adding the trademark fee of this case to the trademark right of this case (hereinafter “the trademark right of this case”); and (d) the plaintiff should also pay the trademark fee of this case to the plaintiff for the import of the goods of this case (hereinafter “the trademark right of this case”); and (e) the plaintiff should also pay the trademark fee of this case for the trademark of this case for 200 years, 201.

Then, the lower court determined that the trademark fee of this case is related to each of the goods of this case, considering the following facts: (a) the trademark of this case is attached to each of the goods of this case; (b) the Plaintiff’s operating profit and sales from the sales of each of the goods of this case are only due to the sales of each of the goods of this case, and does not include the part pertaining to the provision of services in Korea; and (c) the trademark fee of this case is calculated as 1% equivalent to the difference calculated by deducting the purchase amount paid to AB related parties from the sales revenue from the domestic sales revenue of each of the goods of this case; and (d) in the case of the goods of this case, the Plaintiff produced finished products together with other parts in Korea and affixed and sold a trademark of AB, but the Defendant added and sold the trademark of this case to the customs value of each of the goods of this case.

C. Examining the records in light of the above provisions and related legal principles, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the requirements of relation to

2. Regarding ground of appeal No. 2

A. Article 19(2) of the Enforcement Decree of the Customs Act provides that the royalty to be added to the actual payment price shall be the amount paid directly or indirectly by the buyer according to the terms and conditions of the transaction in relation to the pertinent goods. Article 19(5) provides that a buyer pays the royalty to a person who is not a seller in order to purchase imported goods according to an agreement between the buyer and the seller in accordance with an agreement between the buyer and the seller.

Even if the buyer does not pay the royalty to a person other than the seller according to the direct agreement between the buyer and the seller, in light of the relationship between the buyer, the seller and the holder of the right and the terms of the relevant agreement, if it is deemed that the buyer would be unable to purchase the imported goods from the seller unless the royalty is paid to the person other than the seller, the royalty constitutes a case where the goods are paid according to the terms of transaction, barring special circumstances.

B. Recognizing the reasoning of the judgment of the court of first instance, the court below acknowledged the facts as indicated in its holding, and determined that the trademark fee of this case was paid for each of the goods of this case, considering the following facts: (a) the Plaintiff, the buyer of each of the goods of this case, and both the Plaintiff and the seller, who entered into a trademark use agreement with the Plaintiff, have special relations with the Plaintiff; (b) the Plaintiff, according to the trademark use agreement of this case, all products manufactured and sold are subject to attachment of the trademark of AB; and (c) the Plaintiff, from the related parties to AB, had to purchase each of the goods of this case and attach the trademark of AB to sell them domestically or overseas; and (d) according to the trademark use agreement of this case, the Plaintiff must strictly comply with the quality standards and specifications presented by AB and suspend the distribution and sale of the goods affixed with the trademark of this case, and the Plaintiff has no choice but to purchase each of the goods of this case from the AB related parties to AB to comply with such quality standards and specifications.

C. Examining the records in light of the above provisions and legal principles, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the requirements for

3. Conclusion

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.

Justices Park Sang-ok (Presiding Justice)