[1] The meaning of "the form of a product" as an object of reproduction under Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act and the requirements for meeting such meaning / Whether the form of a product is subject to protection of an unfair competition act which imitates "the form of a product" in a case where the idea, pattern, characteristic pattern, function, etc. constituting the form of the product are identical, but there is no consistent formation between the products (negative)

[2] In a case where the issue was whether the products of Company A, which included in transparent cups or containers, was subject to protection under Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act, was the product type of each individual product, and thus, it cannot be subject to protection under the above provision because it is difficult to view that the product type of products always exists due to the difference in the product form

[1] Article 2 subparag. 1(i) of the Unfair Competition Prevention and Trade Secret Protection Act provides that an act of transferring or lending goods which imitates the form of goods produced by another person is one type of unfair competition act. This aims at preventing unfair competition benefits by reproducing the form of goods developed by another person and smelling goods to the extent substantially identical. The “type of goods” as an object of reproduction as prescribed above refers to the shape, pattern, color, or luminous name of the goods itself, or the entire appearance combining them. Therefore, in order to consider the form of goods subject to protection under the above provision as having the shape of goods, consumers should have the form of goods not only by themselves but also a standardized form. In light of social norms, if there is no consistent formation among the goods, it cannot be deemed as an act of unfair competition that imitates the form of goods even if the idea, pattern, characteristic shape, or function, etc. of the goods is identical.

[2] In a case where the issue was whether the products of Gap corporation, which composed of a boome bet bet bet protection under Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”), on the part of the small-sized cream or container contained in transparent cup or container, are subject to protection under Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act, the case affirming the judgment below holding that the products of Gap corporation cannot be seen as always having a certain form of product because the product type vary for each individual product, and it is difficult to view that the product type of Gap corporation is in the form of product at all times due to the characteristics of manufacturing and selling the products made by the store employee after receiving orders from customers, namely, in tin, from the perspective of manufacturing and selling the products made by the store employee at the order.

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

Seoul High Court Decision 200Na1448 decided May 1, 200

MCo Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2052436 decided September 10, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the claim for prohibition on the sale, etc. of the plaintiff's product based on Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act

A. As to the ground of appeal on the form of the product

1) Article 2 subparag. 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) provides that an act of transferring or lending goods that imitates the form of goods produced by another person is one type of unfair competition act. This aims at preventing a person from gaining unfair competition profits by reproducing the form of goods developed by another person to such an extent as to be substantially identical. The “type of goods” as an object of reproduction as prescribed above refers to generally the shape, pattern, color, or luminous of the goods itself, or all its combinations. Therefore, in order to determine that a person has the form of goods subject to protection under the above provision, consumers should have a standardized form as well as a standardized form, in order to recognize that the goods are specific goods by themselves. If there is no consistent formation between the goods in light of social norms, even if the idea, pattern, or characteristic shape or function of the goods is identical, it cannot be deemed as an act of unfair competition that imitates the form of goods.

2) According to the reasoning of the lower judgment, the lower court determined that: (a) Plaintiff’s product, not an industrial product, was made and sold by salesroom employees after receiving an order from customers; (b) the height and shape of the small-value cream, the size and shape of the small-value cream, and the location of the small-value cream in the small-value cream is highly likely to vary by individual product; (b) Plaintiff’s product in fact sold in the Plaintiff’s store 2cm x 3cm as the Plaintiff’s assertion x 2cm x 2cm m or 2cm m2cm m2; and (c) it is difficult to view Plaintiff’s product to be in the small-scale shape of the small-scale product in which the small-scale cream cream cream cream was put on the small-sized product, and thus, it is difficult to view Plaintiff’s product to be in a way different from that of the small-scale product itself in terms of its size and shape.

3) The above determination by the court below is premised on the fact-finding that the Plaintiff’s product failed to establish a consistent form, and since the fact-finding does not seem to exceed the bounds of the principle of free evaluation of evidence, it constitutes the exclusive right of the court below. In addition, in light of the aforementioned legal principles, the court below did not err in its judgment by misapprehending the legal principles as to unfair competition by copying the product form under Article 2 subparag. 1 (i) of the Unfair Competition Prevention Act

B. As to the ground of appeal on the ordinary form of goods

This part of the ground of appeal is with respect to the lower court’s additional determination, and as seen earlier, the lower court’s determination that the Plaintiff’s product cannot be subject to protection pursuant to Article 2 subparag. 1 (i) of the Unfair Competition Prevention Act does not affect the conclusion of the instant case, insofar as it is justifiable.

2. As to the prohibition of sale, etc. of the plaintiff's product and the prohibition of use of photograph under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act

In this regard, no grounds of appeal are stated in the petition of appeal or the appellate brief.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kwon Soon-il (Presiding Justice)