[1] Requirements for "container or package of goods" or "mark without identification" to constitute "marks indicating another person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The meaning of "a mark indicating another person's goods has been widely known in the Republic of Korea" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act and the criteria for determining such "a mark"

[1] Generally, although a container or package does not indicate the source of a product, the shape, structure, pattern, color, etc. of a certain container or package is used as a means of giving a unique identity to the product. Where it has been used continuously, exclusively or exclusively for a long time, or its shape, structure, or color has been considerably individualized by continuous publicity advertisement, etc. to the extent that it is a product of a specific quality among traders or users, it constitutes "mark indicating another person's product" as provided by Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "Unfair Competition Prevention Act"). Further, even though a mark having no general distinctive character, such as a technical mark under Article 6 (1) 3 of the Trademark Act, is used for a long time and thus its use is widely known to customers or general consumers as indicating a certain person' product, it constitutes "mark indicating another person's product" as provided by Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act.

[2] The meaning of "the mark indicating another person's goods was widely known in the Republic of Korea" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act does not require that the mark "it was widely known in the Republic of Korea" is widely known to all persons, but it is sufficient to the extent known among traders or consumers within a certain domestic area. Whether the mark is widely known is determined by the period of use, method, pattern, quantity of use, scope of transaction, etc., and the actual condition of goods transaction, and whether it was objectively widely known under the social norms objectively.

[1] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act, Article 6 (1) 3 of the Trademark Act / [2] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 2002Da18152 Decided November 11, 2004, Supreme Court Decision 2006Do577 Decided May 25, 2006 (Gong2006Ha, 1215) / [2] Supreme Court Decision 2000Da4487 Decided April 10, 201 (Gong2001Sang, 1100) Supreme Court Decision 2007Do10562 Decided September 11, 2008 (Gong2008Ha, 1408)

Defendant

Prosecutor

Cheongju District Court Decision 2009No941 Decided April 29, 2010

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined.

Generally, the container or package does not indicate the source of a product. However, if the shape, structure, or color, etc. of a certain container or package is used as a unique means for the product, and its shape, structure, or color has been used continuously, exclusively, or continuously for a long time or it has become considerably individualized by continuous publicity advertisement, etc. to the extent that it is a specific product of a specific quality with customers or users, it constitutes “the mark indicating another person’s product” under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) (see, e.g., Supreme Court Decision 2002Da18152, Nov. 11, 2004). In addition, if it is widely known within the scope of Article 6(1)3 of the Trademark Act that the product is used for a long time, it constitutes “the mark or other person’s specific product use” under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act (see, e.g., Supreme Court Decision 2007Da2574, supra.

According to the evidence duly adopted by the court below, the defendant-appellant 1 factory, the injured party, from March 12, 1990 to March 12, 199, manufactured and sold the so-called "ro-ju" product from around 10,000 to around 2008. The defendant-appellant's sales in 2007 to KRW 11.968,00,000,000, and most of them were 1.96,000,000 so-called "ro", the victim's ex-factory 1 was 0.6% of domestic consumption volume in 2008, and the victim's products were 1.6% of "non-ro" market in Daegu region from around 202 to 2008, and the victim's products were 1.6% of the victim's products were 5% of the victim's products using the victim's article's pattern "or 1.4% of the victim's products," and the victim's sign " 9."

Examining these facts in light of the legal principles as seen earlier, even if the Defendant’s registered trademark (registration number omitted) was applied on June 28, 2007 and applied for the trademark in a common way, it constitutes a mark indicating the quality and efficacy of the goods in a common way in the case where the mark and the “mark” are used for alcoholic beverages, such as mination, etc., the entire external appearance (hereinafter “instant product mark”) consisting of various elements such as the word, figure, color, etc. on the part of the victim, including the mark and the “mark” on July 2008, which had already been applied for the production and sale of the so-called product in Daegu area, it is reasonable to view that it constitutes a widely recognizable population of the goods in the middle and its neighboring area as being widely known to the extent that it is limited to the extent that the goods are goods of a specific source in the middle and its neighboring area. In addition, it is reasonable to view that the Defendant’s neighboring area and its adjacent area constituted a specific population mark of the goods in Korea and its adjacent area.

Meanwhile, as long as the trademark of this case on the part of the victim was widely known to the extent that the trademark of this case on the part of the victim was widely known as the trademark of the victim in Daegu and its neighboring areas at the time of the defendant's application for the registered trademark, the defendant's application for trademark registration is deemed to have been made with the intent to unlawfully take advantage of the victim's well-knownness of the trademark, and thus, even if the trademark of the defendant's use is substantially identical to the defendant's registered trademark and the defendant's use of the trademark in Daegu and its neighboring areas constitutes an unfair competition act under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act.

Nevertheless, the lower court determined that the instant product mark does not constitute “a mark indicating another person’s goods widely known domestically” under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act and acquitted the facts charged of the instant case on the premise that there is no clear evidence to support that the instant product mark has been used continuously, exclusively, or exclusively for a long time, or that it has reached the level of acquisition of superior status to the general consumers as a product of a specific quality source through continuous publicity or advertisement. In so doing, the lower court erred by misapprehending the legal doctrine on “mark indicating another person’s goods widely known domestically” under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)