The number of crimes where trademark infringement on several registered trademarks continues to be committed (=an all-inclusive of each registered trademark)

Article 37 of the Criminal Act, Article 93 of the Trademark Act

Supreme Court Decision 2009Do10759 Decided July 14, 2011 (Gong2011Ha, 1669)

Defendant

Defendant

Law Firm Rosk-si, Attorneys Southern-hee et al.

Seoul Eastern District Court Decision 2010No1762 decided September 1, 2011

Of the judgment below, the attached list Nos. 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 16, 17, 18, 19, and 25 of the judgment below is reversed, and the case shall be remanded to the Panel Division of the Seoul East District Court.

1. The decision of the court of final appeal shall be made ex officio.

In a case where an act of infringement of trademark rights under Article 93 of the Trademark Act was continued with respect to several registered trademarks, one crime is established by combining each one of the registered trademarks. Thus, barring any special circumstance, it cannot be deemed that a single crime is constituted by combining several trademark infringement acts different from the registered trademarks on the ground that the trademark right holder and the mark are the same (see Supreme Court Decision 2009Do10759, Jul. 14, 201).

According to the above legal principles, among the facts charged in this case, trademarks/service marks (registration No. 1 omitted) composed of “Tts and sports Shirts” as designated goods and constitutes an infringement of trademarks/service marks (registration No. 1 omitted); 6, 8, 13, 16, 17, and 19 parts (hereinafter “the part on infringement of the first registered trademark”); and 19 parts as designated goods (registration No. 1 omitted); 4, 5,7, 9, 10, 12, 18, and 25 parts (hereinafter “instant 2 registered trademark”); 3,000,000 among the facts charged in this case’s list No. 4,5,7, 10, 12, 12, and 25 parts (hereinafter “instant 1 registered trademark”); 4,000,000 or more of the registered trademark’s list No. 1, 32,000 or more of the designated goods (hereinafter “No. 4,001,00”).

However, according to the reasoning of the judgment below, among the facts charged in this case, the part concerning the infringement of the first registered trademark of this case and the part concerning the infringement of the second registered trademark of this case except the No. 5 of the attached list in the decision of the court below, and the part concerning the infringement of the fourth registered trademark of this case among the part concerning the second registered trademark infringement of this case, and the part concerning the No. 5 of the attached list in the decision of the court below,

Therefore, in this case where only the defendant appealed against the guilty portion, the part as to the No. 5 of the attached list No. 2 in the judgment of the court below as to the violation of the registered trademark No. 2 in this case was transferred to the court of final appeal by the principle of no appeal by the defendant according to the defendant's appeal as to the remaining part related to the crime of universal offense (However, since the part as to the infringement of registered trademark No. 3 in this case was transferred to the court of final appeal by the principle of no appeal by the defendant (see Supreme Court Decision 2009Do12934, Jan. 14, 2010, etc.). Thus, the part as to the infringement of registered trademark No. 3 in this case where

2. The grounds of appeal are examined.

A. Determination on the grounds of appeal Nos. 1 and 3

(1) In principle, the similarity of a combined trademark consisting of two or more letters shall be determined by the appearance, name, and concept derived from the entire text constituting the trademark. However, in a case where it is recognized that a combination of letters can be traded only with an essential part, the similarity of a trademark may be determined by the name or concept derived from the separation or extraction of the essential part and by the combination of letters (see Supreme Court Decision 2010Hu1763, Jan. 27, 201, etc.).

(2) Based on the above legal principles and evidence duly adopted and examined by the court below, we examine whether the registered trademark 1 of this case and the "Titts and Sports," etc. are similar to the marks listed in the attached Table 6, 8, 13, 16, 17, and 19, which are composed of "A.FITCH", "A.FITCH", "N.FITCH", "FITCH", and "FITCH".

Since the first registered trademark of this case is divided into “ABE” from the left side to “FITCHE” on the basis of “FITCH”, which is a symbol with the meaning of “andand” in English, it is difficult to refer to the entire trademark as a whole. In addition, “FITCH” is an English language with the meaning of “tensions satisfaction” or their hairs and shiffs, etc., and it seems that ordinary consumers or traders are aware that it is not related to the nature of the description, description, efficacy, use, etc. of goods related to the designated goods of the registered trademark of this case. Thus, insofar as it appears that “FITCH” is used as the name of the UK FITCHCA, one of the designated credit rating institutions, and thus, it cannot be seen that it constitutes a separate list of “FITCH1” and “FIT1” in the judgment below. Accordingly, it can be seen that it is similar to the list of “FIT1” in this case’s appearance and meaning.

(3) Furthermore, based on the aforementioned legal principles and evidence duly adopted and examined by the court below, we examine whether the registered trademark of this case No. 2 and the “Trts and Sports Shirts,” etc. are similar to the marks No. 4, 10, 12, and 18 of the attached Table 4, 10, 12, and 18 of the court below’s decision

“A&FY” in the attached list Nos. 4, 10, 12, and 18 of the judgment of the court below among the parts “N&FY” in the latter part of the attached list Nos. 4, 10, 12, and 18 of the judgment of the court below, is a mark that is the center of fashion, which is the weak of “NEW YRK,” and thus, its distinctiveness is weak, while the above part “A&F” has sufficient distinctiveness in relation to the used goods, as it is a sign combinings “A” with “N&F,” which is the symbol having the meaning of “Wand” between “B” and “F,” and, in this case, the above part “A&FY” mark can be briefly named and conceptualized only with “A&F,” and in such a case, the title and concept of the registered trademark No. 2 of this case are identical and similar to the registered trademark of this case, thereby causing confusion and confusion between ordinary consumers and traders.

(4) 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 similarity of trademarks as alleged in the grounds of appeal.

B. Judgment on the fourth ground for appeal

According to the evidence duly admitted and examined by the court below, the registered trademark 2 of this case can be named as ENF or ENF, and if so named as ENF, it is similar to the marks listed in No. 25 of the attached Table No. 25 of the judgment of the court below, such as ENF, and the name of ENF, and if the marks are used together with the same or similar goods, it is likely that ordinary consumers or traders may mislead or confuse the origin of the goods.

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 similarity of trademarks as alleged in the grounds of appeal.

C. Judgment on the second ground for appeal

“AFNY” in the attached list No. 9 of the decision of the court below is merely a combination of alpha of alpha of alpha and alpha without any particular characteristics, and it cannot be deemed as a spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric spheric sp

Nevertheless, the lower court erred by misapprehending the legal doctrine as to the similarity of trademarks, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Scope of reversal

For the foregoing reason, the part of the judgment below as to the annexed list Nos. 9 in the judgment below should be reversed. Since this part is related to the crime of comprehensively establishing the part that constitutes the violation of the trademark No. 2 in the above list No. 4, 5, 7, 10, 12, 18, and 25 with the above list No. 4, 7, 10, 12, 18, and 25, the part that constitutes the violation of the trademark No. 2 in the above list No. 2 in the part that infringed the trademark No. 2 in this case and the part that infringed the trademark No. 1 in this case and the part that infringed the registered trademark No. 4 in this case should be sentenced to one sentence due to concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the part that infringed the trademark No. 1 in this case and the part that infringed the trademark No. 4 in this case should also be reversed. 3,4,5,7, 18,17

4. Conclusion

Of the judgment below, the part of the list Nos. 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 16, 17, 18, 19, and 25 of the judgment of the court below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)