[1] Requirements for the type of goods to constitute "a mark indicating another person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The case holding that discriminatory features of the applicant's different form or quality do not constitute "a mark indicating others' goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] The form of a product is allowed to be copied and produced in principle unless it is protected by a design right or patent right, etc. However, it is exceptionally permitted to be protected under the Unfair Competition Prevention and Trade Secret Protection Act only where the discriminatory feature of a product by continuous, exclusive or continuous use for a long time, or continuous publicity advertisement is considerably individual to the extent that it is the product of a certain source with a specific quality for customers or users, as it constitutes "a mark indicating another person's product" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act.

[2] The case holding that it does not constitute "a mark indicating another person's goods" as stipulated in Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act on the grounds that it is not recognized that the differentiated feature of the fat pattern and metal quality of another day imported and sold domestically by the applicant was significantly individualized to the trader or user as goods of a specific source with a specific quality

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

[1] Supreme Court Order 96Ma365 dated Nov. 27, 1996 (Gong1997Sang, 72) Supreme Court Order 96Ma675 dated Apr. 24, 1997 (Gong1997Sang, 1551)

Man Construction Materials Co., Ltd. (Law Firm Dan Law, Attorney Park Jong-chul, Counsel for defendant-appellant)

[Defendant-Appellant] KTmix Co., Ltd. (Law Firm Global, Attorneys Choi Jae-re et al., Counsel for defendant-appellant-appellant)

1. The petitioner's application of this case is dismissed.

2. The cost of the application shall be borne by the applicant;

The respondent shall not manufacture and sell the products listed in the attached Table 2, similar to the products listed in the attached Table 1. The respondent shall not manufacture and sell the products listed in the attached Table 2. The respondent shall hold possession of the existing completed products and semi-finished products listed in the attached Table 2. and shall order the enforcement officer delegated by the applicant to keep them.

1. Summary of the applicant's assertion

A. An applicant who engages in wholesale and retail business of construction materials: (a) entered into a domestic agency contract with Spanish Manufacturing Business Co., Ltd. (TAUAUC) with the Spanisher Co., Ltd.; and (b) from June 200, the applicant began to import and sell the top-class bricks in the attached Table 1, which are the high-class bricks created by Spanisher Co., Ltd. (hereinafter referred to as “the applicant date”).

B. The filing date of an applicant who sells the applicant is a very unique form with metal quality in the mother and child pattern, and is easily distinguishable from the ordinary days sold in the city. In addition, the applicant has continuously published an advertisement in a man-made magazine, etc. in which the sum of 50,000,000 won or more is charged with the promotion of the sales of other days, and has produced and distributed various car-sloping and advertising leaflets in order to promote the sales of other days. As a result, the filing date became widely known products to the extent that anyone can know that the applicant is an imported product if he/she is engaged in another business.

C. From September 2002, the respondent started to produce and sell the date of the entry in the attached Table 2. Epic from around September 2002 (hereinafter referred to as “the date of the respondent”), and the date of the respondent is not only the mother and child pattern of the applicant, but also the most unique characteristics of the metal quality.

D. As such, the Respondent's production and sale of the maternity work which imitates the Respondent's third party's third party's third party's third party's third party's third party's third party's third party's trademark is an act that causes confusion with the applicant's third party's third party's third party's third party's third party's trademark, which is widely known in Korea, and constitutes an unfair competition act under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "Unfair Competition Prevention and Trade Secret Protection Act"). Thus, in order to prevent the occurrence and expansion of the applicant's

2. Determination

However, as long as the form of a product is not protected by a design right or patent right, it is allowed to imitate and produce it in principle. However, only when the form of a product is clearly differentiated to the extent that it is a product of a specific quality among traders or users by continuous, exclusive use or continuous advertising advertisement for a long time, it constitutes "a mark indicating other person's product" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act and is protected under the same Act (see Supreme Court Order 96Ma365, Nov. 27, 1996; Supreme Court Order 96Ma675, Apr. 24, 1997, etc.).

According to the records of this case, Gap evidence 1 to Eul evidence 2, Eul evidence 1 to Eul evidence 2, Eul evidence 1 to Eul evidence 1 to Eul evidence 2, Gap evidence 1 to Eul evidence 1 to Eul evidence 2, Gap evidence 1 to Eul evidence 1 to Eul evidence 2, Eul evidence 1 to Eul evidence 1 to Eul evidence 2, Eul evidence 1 to Eul evidence 1 to Eul evidence 1 to 7, Eul evidence 1 to Eul evidence 1 to 7, Eul evidence 1 to 1 to 6, Eul evidence 1 to 1 to 7, Eul evidence 1 to 1 to 7, Eul evidence 1 to 1 to 10, Eul evidence 2 to 1 to 7, the plaintiff evidence 1 to 1 to 600, the plaintiff evidence 2 to 1 to 1 to 7, the plaintiff evidence 2 to 9 to 1 to 10, the plaintiff evidence 2 to 1 to 600, the plaintiff evidence 2 to 1 to 2002.

3. Conclusion

Therefore, the petitioner's application of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Ho-hun (Presiding Judge)