Defendant

Defendant

Enforcement Decree of the Republic of Korea

Attorney Park Jong-soo (Korean)

Seoul Central District Court Decision 2009 High Court Decision 4348 Decided January 13, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of this case against the defendant is publicly announced.

1. Summary of the facts charged in this case

The summary of the facts charged of this case is as follows: (a) the Defendant operates “○○○○,” “△△△△△,” and “△△△△” and (b) from May 15, 2002 to May 27, 2006, “○○○○○○” Non-Party 1’s service mark registration (registration number 1 omitted), (registration number 2 omitted) service mark registration (registration number 2 omitted) (registration number 2 omitted), which are similar to “(Internet address 1 omitted),” (registration number 2 omitted),” (Internet HHAL registration number 2 omitted; (c) Defendant’s registration number 1 omitted for the instant service mark to be linked to “△△△△△”, which is an unspecified site for the sale of Buddhist goods; and (d) Defendant’s registration number 2,00,000 (MA/M/ 28,000)’s online service mark, which infringes on the victim’s right to use the registered service mark.

2. The judgment of the court below

The lower court found all of the facts charged in the instant case guilty based on the evidence duly adopted and examined by the lower court.

3. Summary of the grounds for appeal;

A. Since the name indicating the source of the Defendant’s web site’s operation’s web site’s “○○” is “○○”, even if the domain name of this case is entered, such as “(Internet address 1 omitted),” “(Internet address 2 omitted),” “Maban MHMAL,” “Maban.com,” etc., which are similar to the victim’s registered service mark, is connected to the Defendant’s “△△△△△△△△” website, and “Mabancom.com,” it cannot be said that the instant domain name was used as the service mark of the said “Maban” website.

B. The Defendant was already finally and conclusively convicted of the facts charged in the instant case No. 1.

C. Of the facts charged in the instant case No. 1, the statute of limitations has already expired until February 25, 2004.

4. Judgment of the court below

A. As to the assertion that “the domain name of this case cannot be deemed to have used the domain name as the service mark of △△ website”

1) The use of a service mark should be presumed to be in order to recognize the infringement of the service mark, and the term "use of a trademark" under the Trademark Act refers to an act under each item of Article 2 (1) 6 of the Trademark Act. For this reason, to constitute the use of a mark, it must be done with a distinctive mark distinguishing between the goods related to one's own business and those related to another's business from those related to another's business under social norms. Such a legal principle applies likewise to service marks under Article 2 (3) of the Trademark Act.

Therefore, in the case of the registration and use of a domain name, the use of a service mark can be seen as “use of a service mark” if it indicates the source of a service in light of trade norms and functions as an identification mark distinguishing between the service related to one’s own business and the service related to another’s business, considering the overall aspects of the domain name’s use mode and the display contents of the web site screen connected to

2) According to the suspect's protocol on the defendant, the police statement of the non-indicted 1, the service mark registration certificate, the computer screen, the supplementary data on the complaint case (II), and the records, the defendant opened the Internet web site of '○○' from 200 to 100 and operated the Internet web site of '(Internet address 4 omitted)', and the defendant opened the Internet web site of '○○○○', and operated the Internet web site of △△△△△△△', which is the web site of △△△△△△△△', which is the non-indicted 6 web site of this case from May 202 to 6, 200.

3) As such, ① Internet address created to allow access to a website that wants by simply inputting Hangul, etc. into a web site without the need to enter the highest domain name, etc., and is used to connect the web site to the “△△△△” web site at the connection stage different from the general domain name indicated on the web site’s address, and unlike the general domain name indicated on the web site’s web site, the “△△△△△” web site is merely used to connect the “△△△△” web site (it cannot be deemed as identical or similar to the designated service business of the victim. It is difficult to conclude that the Defendant operated a service business identical or similar to the designated service business of the victim’s registered service mark. Furthermore, in order to access the “△△△” web site, it is difficult to view that the Defendant’s web site, which is the main body of the service of this case, is operating the web site, and it cannot be seen as having used the same or similar function as the “mail” as the “service of the victim’s registered service mark.

4) Furthermore, the Defendant’s use of the domain name of this case similar to the service mark was made from May 15, 2002 to May 20, 2006, which was transferred from Nonindicted 4 to September 13, 2006. According to the facts charged in this case, the Defendant’s use of the domain name of this case similar to the service mark was made by the victim from May 15 to May 20, 206.

The service mark "Mando MMAL" also acquired the right to the above service mark on May 2, 2008 at the time of registration. According to the facts stated in the facts charged of this case, the use of the domain name of this case similar to the "MaHMAL" service mark was from March 28, 2008 to May 9, 2008. Thus, it is nothing more than the use of the domain name of this case before the victim acquired the right to the above service mark until May 1, 2008.

Even if the defendant uses the domain name of this case similar to this, there is no right of the victim to be infringed, so it cannot be said that the victim infringed the victim's right to service mark.

5) Nevertheless, the court below did not closely examine whether the domain name of this case functions as a mark of the source of the services for the sale of Buddhist goods, and when the victim acquires the right to use the domain name of this case as a service mark, and determined that the defendant infringed the victim's right to use the domain name of this case as a service mark. The court below erred in the misapprehension of legal principles as to the use of the service mark and the infringement of the right to use the service mark, which affected the conclusion of the judgment, and the defendant's above assertion is with merit.

B. As to the assertion that “the facts charged in paragraph (1) are already final and conclusive,”

1) According to the records, such as the judgment (the second page of the investigation record) attached to the supplementary materials for the complaint case (the second page), the Defendant entered the “mabane” widely known in the sale of Internet Buddhist goods into the Internet address box in the office of “○○○○○” from April 2006 to May 27, 2006, the Defendant was acquitted on the charge of violating the Unfair Competition Prevention and Trade Secret Protection Act, and the judgment became final and conclusive on March 27, 2008.

2) However, the facts charged in the above final judgment, however, infringed the victim's right to registered service mark by "the method of entering the victim's trade name in the Korean address window of "Meneta," and the facts charged in Paragraph (1) of this case, as stated in the facts charged, infringed the victim's right to registered service mark by "the method of linking the domain name of this case, similar to the victim's registered service mark, to "Seman △△△△" through the defendant's management, if the domain name of this case is entered in the Internet Bloader address window, which is similar to the victim's registered service mark," and it cannot be deemed that the facts charged in the above final judgment and the facts charged in Paragraph (1) of this case are identical in the basic social facts that form the basis of the crime.

3) Therefore, the defendant's above assertion is without merit.

C. As to the assertion that “the statute of limitations has expired for part of the facts charged in Paragraph (1).”

1) According to Article 93 of the Trademark Act, the statutory penalty for a violation of trademark infringement is a imprisonment with prison labor for not more than seven years or a fine not exceeding KRW 100 million, and the statute of limitations is five years under Article 250 of the Criminal Procedure Act, Article 50 of the Criminal Act, and Article 249 (1) 4 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007).

However, it is evident that the prosecution of this case was instituted on February 25, 2009, and the part of the prosecution as to the facts charged in paragraph (1) (i) until February 25, 2004, five years prior to the date of prosecution, among the charges charged in paragraph (1) (i), constitutes the time the statute of limitations expires.

2) Nevertheless, the lower court did not closely examine whether the statute of limitations has expired, and found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the statute of limitations, which affected the conclusion of the judgment, and the Defendant’s above assertion has merit.

5. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

From February 26, 2004 to May 27, 2006, the summary of the facts charged in Paragraph (1) and Paragraph (2) are the same as the corresponding part of Paragraph (1) above. As seen in Paragraph (1) of Article 4-A, the facts charged in this case constitutes a case where the facts charged in this case does not constitute a crime, and thus, is pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act.

The summary of the facts charged in Paragraph (1) from May 15, 2002 to February 25, 2004 is the same as that of Paragraph (1) above. As seen in Article 4-C, this part of the facts charged falls under the time the statute of limitations has expired, and thus, a judgment of acquittal shall be rendered pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act. However, as long as the court acquitted the part of the facts charged in relation to Paragraph (1) above, which was prosecuted as a single comprehensive crime, from February 26, 2004 to May 27, 2006, a separate judgment of acquittal shall not be rendered.

Judges Sung Ho-ho (Presiding Judge)