Where the same person uses two trade names in the same or similar business in parallel at the same place of business (negative)

Article 21 of the Commercial Act provides for the principle of a trade name for the same business, thereby protecting consumers and preventing unfair restrictions on the freedom of mutual selection of others. The same person uses two identical or similar businesses in the same business place after registering each trade name in his/her own name and the name of his/her wife, which is substantially identical or similar in the same business place, violates the principle of a trade name, and thus, he/she cannot be protected as a double trade name regardless of the registration.

Articles 21 and 22 of the Commercial Act, Article 164 of the Non-Contentious Case Litigation Procedure Act

Freeboard

Freeboard Kim

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant should not use the trade name such as "No. Jeju," "No. Jeju," and "No. Jeju," with respect to the freight transport business," which is operated in Jeju-do 310 45.

The plaintiff asserts that the defendant suffered loss from using the same trade name as that of the plaintiff's trade name, "Saves" and "Saves for New Jeju" for the same purpose as that of the plaintiff's trade name, and thus seeking the abolition of the above trade name against the defendant. The defendant asserts that the above trade name consists of a conspicuous geographical name and a common master's name that means the trade name itself, and that it is improper for the specific person to use it as well as that for the plaintiff to own two or more trade names in the same business.

Therefore, the plaintiff 1, Gap evidence 1-2, Eul evidence 2-1, Eul evidence 2-1, 2-1, Gap evidence 3-1, 2-1, 2-2 (information about the change of shipping enterprises during May), Gap evidence 5-1, 5-2, Gap evidence 6-1 through 4, Gap evidence 8-1 to 9, Eul evidence 9-1 to 9, Eul evidence 9-1 to 7, Eul evidence 9-1 to 9-1, 2 (each advertisement), Eul evidence 9-1 to 9-2, Eul evidence 1 to 9-2, Eul evidence 1 to 9-2, Eul evidence 1 to 9-1 to 9-1, Eul evidence 1 to 97, Eul evidence 1 to 9-2, the plaintiff 2 to 9-1 to 9-4, the plaintiff 1 to 9-2, each other to 9-2, the plaintiff 4 to 9-2, each other to 9-4.

First, since Article 18 of the Korean Commercial Code recognizes a merchant's freedom to choose a trade name, it can be used as a trade name even in the form of letters that cannot be registered or protected as a trademark or service mark pursuant to the Trademark Act. However, a trade name that may be mistaken for another person's business for an illegal purpose pursuant to Article 23 (1) of the Commercial Code shall not be used. In addition, when a trade name is registered pursuant to Article 22 of the Commercial Code, the other party cannot register the same or similar trade name unless it is the trade name to the extent that it can be clearly distinguished from the same business in the same city pursuant to Article 164 of the Non-Contentious Case Litigation Procedure Act, and when using the same or similar trade name, it is presumed that the same or similar trade name is used for an unjust purpose

From February 13, 196 to February 28, 1997, the part of the plaintiff's claim against the defendant for the abolition of the trade name is without merit, and the part of the plaintiff's claim for the cancellation of the trade name is without merit, so long as the plaintiff used the same trade name first, and completed the trade name registration under its name, the defendant is presumed to have used the same trade name for any unlawful purpose, regardless of the registration of the automobile brokerage business, and since February 28, 1997, it is recognized that he operated the business such as transportation of cargo, but there is no evidence to regard that the defendant who operated the same kind of business within the same time is currently using the trade name of the same kind of business, and therefore, the plaintiff's trade name is presumed to have been used for the same trade name for the same purpose, and therefore, the plaintiff's trade name is presumed to have been used for the same purpose as that of another person's business.

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-ho (Presiding Judge)