[1] Whether an owner of a trademark right or a service mark right may file a claim against a third party for the prohibition of unauthorized use of the trademark or service mark by the third party where an exclusive license is established on the trademark or service mark (affirmative), and whether a violation of the Trademark Act due to an infringement of trademark right is also established in addition to a violation of the Trademark Act due to an infringement of exclusive license (affirmative)

[2] The meaning of "disseminating false facts" in the crime of interference with business

[1] Where an exclusive license is established as to the trademark right or service mark right, the use right of the trademark or service mark right of the owner of the trademark right or service mark right is restricted. However, where a third party uses the trademark or service mark without legitimate legal authority, the right of the owner of the trademark right or service mark right to claim prohibition against the use of the third party's trademark or service mark based on the trademark right or service mark right does not lose the right. In such a case, the violation of the Trademark Act infringing the exclusive license of the owner of the trademark right or service mark right is established, as well as the violation of the Trademark Act infringing the trademark right or service mark right of the owner of the trademark right or service mark right.

[2] In the crime of interference with business, the phrase “disseminating false facts” does not necessarily mean that the basic facts are false. Although basic facts include cases where there is a risk of interference with another’s business by adding false facts to a considerable extent even if they are true, it does not constitute a case where there is no risk of interference with another’s business because, in light of the overall purport of the contents, important parts are consistent with objective facts, and there is a little difference in detailed contents or a little exaggerated expression.

[1] Article 93 of the Trademark Act / [2] Articles 313 and 314 (1) of the Criminal Act

Defendant

Defendant

Suwon District Court Decision 2005No3447 decided Feb. 9, 2006

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

We examine the grounds of appeal.

1. As to the ground of appeal No. 1 (the violation part of the Trademark Act)

Where an exclusive license is established as to a trademark right or a service mark right, the license of a trademark right holder or a service mark holder is restricted, but if a third party uses such trademark or service mark without legitimate legal authority, the right of the trademark right holder or the service mark holder to claim prohibition against the use of the third party's trademark or service mark based on the trademark right or service mark right is not lost. In addition, in such a case, the violation of the Trademark Act infringing on the exclusive license of the trademark right holder or service mark right holder as well as the violation of the Trademark Act infringing on the trademark right or service mark right of the trademark right holder or service mark holder.

On the premise of the same legal principle, the court below found that the defendant's use of the service mark of this case by the non-indicted 2, the non-indicted 1, the representative director of Hanland, and the non-indicted 2, who used the service mark of this case without entering into a contract with the non-indicted 1, and the non-indicted 2, lost the right to use the service mark of this case against the non-indicted 2, and the non-indicted 1, the defendant's use of the service mark of this case's exclusive licensee's right to use the service mark of this case's non-indicted 2, the non-indicted 3, the non-indicted 2, the non-indicted 2, the non-indicted 2, the non-indicted 2, the non-indicted 2, the non-indicted 3, the right to use the service mark of this case's non-indicted 1, the non-indicted 2, the non-indicted 3, the defendant, who was not the right to use the service mark of this case's non-indicted 2, was dismissed on the ground of appeal 20.

2. As to the ground of appeal No. 2 (Interference with Business)

A. Meanwhile, on or around December 4, 2003, the court below rejected the defendant's decision that "the trademark exclusive use right of Wonland can be confirmed to be delegated by Nonindicted 2 to Nonindicted 5," and "the series of contents asserted by Nonindicted 1, who made a complaint, have the right to exclusive use right of the trademark, against Nonindicted 5, and the president's thickness is the time to cope with the performance of his duties on the street royalty and other cost generated, and it is clear that the defendant did not have any legal preparation for the demand from Nonindicted 1, and that the defendant distributed the printed goods to the exclusive licensee in Grandland and thus interfered with the business of the Republic of Korea by spreading the printed goods to the non-indicted 5," and rejected the judgment of the court of first instance that found the defendant guilty of the charge that the defendant did not bear any false information on the right to use the trademark, as a matter of principle, even if he did not obtain the consent of the exclusive licensee's right to use the trademark as the reason for interference with the business of the defendant's exclusive licensee.

B. However, the lower court’s determination is difficult to accept for the following reasons.

First, in the crime of interference with business, the phrase “disseminating false facts” does not necessarily mean that the basic facts are false. Although the basic facts include cases where there is a risk of interference with another’s business by adding false facts to a considerable extent even if they are true, it shall not be deemed that the basic facts are consistent with objective facts, and only a certain degree of difference in the detailed contents or somewhat exaggerated expressions, and thus, they do not constitute a case where there is no risk of interference with another’s business.

However, as recognized in the judgment of the court below in this case, although Non-Indicted 1's representative director, who is the right holder of the service mark of this case, was not the exclusive licensee of the service mark of this case, the defendant did not know that the exclusive license of this case was not against Non-Indicted 1 and Non-Indicted 2, at the time of distributing their printed materials, it cannot be deemed that the defendant distributed objective false facts with the fact that the exclusive license of this case was not against Non-Indicted 1: Provided, That in the situation where the exclusive license was established against Non-Indicted 2, the defendant distributed only the fact that the exclusive license was not against Non-Indicted 1, and the exclusive license was delegated to Non-Indicted 5 or reverted to Non-Indicted 1, or the exclusive license was called as the head office of Grandland (such as Hanland store contract, Linti, Linti, delivery of content certification, etc.) and the representative director did not exercise the right to use the service mark of this case, even if the defendant did not exercise the right to use it against Non-Indicted 25.

Nevertheless, as stated in its holding, the court below concluded that the defendant interfered with the business of Wonland by spreading false facts on the ground that the non-indicted 5 was not registered as an exclusive licensee and that the non-indicted 5 was not able to use the service mark of this case by the court's provisional disposition decision and the judgment of the court. In this part of the judgment of the court below, it is erroneous in the misapprehension of legal principles which affected the conclusion of the judgment, or in the misconception of facts due to the violation of the rules of evidence, and therefore, the ground of appeal No. 2 that points out

3. Conclusion

As above, the ground of appeal No. 1 is without merit, and the ground of appeal No. 2 is with merit, but the judgment of the court of first instance, which the court below maintained, recognized each of the above crimes as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, so the entire judgment

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 Ahn Dai-hee (Presiding Justice)