In a case where Company A, which sells red ginseng products, etc. using the registered trademark “,” etc., sought a prohibition on the use of a mark against Company B, which used the mark “,” “,” “,” “,” “,” and “ ” as the main ingredient for red ginseng, the case holding that Company B’s act of manufacturing and selling marks similar to the registered trademark, which is domestically known, on red ginseng products, constitutes an unfair competition act under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act, as it causes consumers or traders to confuse with the goods of Company A.

A corporation that sells red ginseng products, etc. using registered trademark “,” etc. is a case where Party “A” used the mark “,” “,” “,” “,” and “B” applied for the prohibition of the use of a mark against the corporation “B” that sells red ginseng as its main ingredient.

As of the time of the closing of argument, the registered trademark is a product label indicating that Company A is red ginseng products manufactured and sold, and is widely recognized domestically and recognized by ordinary consumers, and both the registered trademark and the marks of Company B are "the shape of two persons who are considered to be mast," which is composed of "the shape of "the ginseng roots", and such composition depends on the overall increase of the observationer by drawing the observationer's starting line in size, location, weight, etc., and thus the registered trademark and the marks of Company B are similar in light of all the factors that contribute to indicating the source of the product, such as the fact that the appearance, name, and concept of the trademark are similar to the appearance of the trademark and the marks of Company B are similar in comparison with the overall and separately observation from the perspective of the parties or ordinary consumers, and the overall increase is similar in the trademark and the marks of Company B are likely to mislead or confuse general consumers or traders as to the origin of the product, which constitutes an act of unfair competition under the Unfair Competition Prevention Act or the trade Secret Protection Act of Company A as an act.

Articles 2 subparag. 1 (a), 4, and 5 of the Unfair Competition Prevention and Trade Secret Protection Act

Korea Ginseng Corporation (U.S. Law Firm, Attorneys Jeon Jong-sung et al., Counsel for the defendant-appellant)

Tae Food Co., Ltd. (Law Firm Han-ro, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2016Gahap570621 Decided November 17, 2017

August 17, 2018

All appeals filed by both the plaintiff and the defendant are dismissed.

Expenses for appeal shall be borne individually by each person.

[Claim]

1. The defendant,

(a) No marks listed in the separate sheet No. 1 shall be indicated on the product listed in the separate sheet No. 2;

(b) not sell, transfer, deliver, advertise, exhibit, export, or import each product listed in the separate sheet No. 2 indicating each mark listed in the separate sheet No. 1;

C. Each mark listed in the separate sheet No. 1 shall be indicated on the Defendant’s Internet homepage (site address omitted) and online shopping mall web page.

2. The defendant shall discard all of the products listed in the separate sheet No. 2, each of which marks listed in the separate sheet No. 1 in the defendant's headquarters, branch, office, place of business, factory, and warehouse, as well as their packages, containers, leaflets for public relations, books, contracts, transaction documents, and advertising materials.

3. With respect to the Plaintiff KRW 124,537,49 and KRW 50,00,000 among them, the Defendant shall pay to the Plaintiff 15% interest per annum from the day following the service date of a duplicate of the instant complaint, and with respect to KRW 74,537,49, the Defendant shall pay to the Plaintiff 15% interest per annum from the day following the service date of a written application for amendment of the purport of the instant complaint, which is August 24, 2017,

【Purpose of Appeal】

A. The plaintiff

The part against the plaintiff seeking payment under the judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 74,537,49 won and 15% interest per annum from August 24, 2017 to the date of service of the application for modification of the purport of the claim as of August 24, 2017 (1) a week following the date of service of the application for modification of the claim) to the day of complete payment (the plaintiff claimed removal of the unlawful state as the incidental claim for prohibition and prevention of infringement, but the judgment of the court of first instance shall accept the claim for prohibition and prevention of infringement, part of the claim for damages, and part of the claim for removal of the mark in the form of infringement shall accept the claim for removal of the mark in relation to the claim for removal of the unlawful state, but the claim for removal of the mark in the form of infringement itself cannot be accepted as an excessive claim. Accordingly, since the plaintiff filed an appeal only for part of the claim dismissed in the judgment of the court of first instance, the part of the claim for removal of the plaintiff's unlawful state does not include the part of the claim for removal of

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiff's claims corresponding to the revocation are dismissed.

1. Basic facts

A. Status of the parties

1) The Plaintiff is a company engaged in the manufacture, sale, etc. of ginseng varieties and ginseng products with the brand called “Articles of Incorporation”, and is a trademark right holder of each of the following registered trademarks (hereinafter each trademark is marked in the same manner as “Plaintiff ○○ Trademark,” and, in total, “Plaintiff Trademarks.” The Plaintiff sells red ginseng products, etc. using the Plaintiff’s trademark as each of the designated goods indicated below in the list:

A person shall be appointed.

2) The Defendant, a company running health food manufacturing, wholesale and retail business, etc., and the Defendant, around 2010, manufactured and sold functional health foods with red ginseng as its main ingredient, and sold each mark listed in the separate sheet No. 1 (hereinafter “Defendant marks”) on the goods listed in the separate sheet No. 2.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 and 3 (including numbers for each item; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the claim for prohibition

A. The plaintiff's ground for claim

The Plaintiff’s selective production and sale of red ginseng-related products using Defendant marks constitutes ① an unfair competition act under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) or an unfair competition act under Article 2 subparag. 1(c) of the same Act (hereinafter “Unfair Competition Prevention Act”), or ③ an infringement of trademark rights on Plaintiff’s products.

B. Appropriateness of the claim for prohibition against the act of unfair competition under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act

1) Whether the plaintiff 3 trademark constitutes an well-known product mark

A) The following facts may be acknowledged by comprehensively taking account of the overall purport of the pleadings in the descriptions or images of Gap evidence Nos. 9 through 23, Gap evidence No. 30 through 41, and Gap evidence No. 63 through 70.

① The Plaintiff 3’s trademark was designed for the first time in 1995, and was indicated on the Plaintiff’s red ginseng concentrate product (red red ginseng product, daily red ginseng product, red ginseng product, red ginseng product, red ginseng product, red ginseng product, red ginseng product, etc.) in the Plaintiff’s wave around 1997. Since then, it is indicated on most red ginseng products manufactured and sold by the Plaintiff.

② The Plaintiff’s market share in red ginseng products was 74.8% in 2008, 73.3% in 2009, 73.95% in 2010, 64% in 2003, 67% in 2004, 63% in 205, 63% in 2006, 63% in 2006, and 67% in 207 in the market for red ginseng products.

③ The sales amount of red ginseng products manufactured and sold by the Plaintiff with the Plaintiff’s trademarks 3 was approximately KRW 315.4 billion in 2005, KRW 408.6 billion in 2006, KRW 495.0 billion in 2007, KRW 590.7 billion in 2008, KRW 706.1 billion in 2009, KRW 7795.9 billion in 201, KRW 884.1 billion in 201.

④ From around 200 to March 2017, the Plaintiff spent approximately KRW 280 billion at the advertising cost via TV, radio, newspapers, magazines, etc. with respect to red ginseng products marked by Plaintiff 3.

⑤ As of March 2017, the Plaintiff’s franchise store and direct control store selling the Plaintiff’s red ginseng products reached 794 stores in Korea (758 member stores, 36 direct control stores). Moreover, the Plaintiff’s red ginseng products are sold after being displayed at large domestic department stores, mat, duty-free shops, etc.

6. As to the sales amount of the Plaintiff, the “articles of Incorporation” brand used by the Plaintiff, the effectiveness, etc. of red ginseng products manufactured and sold by the Plaintiff (the most of them indicated Plaintiff 3) may be easily searched by domestic media newspaper articles.

B) According to the above facts, it is reasonable to view that Plaintiff 3’s trademark is a product label indicating that the Plaintiff was red ginseng products manufactured and sold, and that it is widely recognized domestically and recognized by ordinary consumers as good quality.

2) Whether or not Plaintiff 3’s trademark and Defendant’s mark are identical or similar

A) Relevant legal principles

Whether a product mark is similar under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act shall be determined by whether there is a possibility of misconception or confusion as to the source of the product with the overall observation of two product marks used for the same kind of product in terms of appearance, name, concept, etc. and on the basis of awareness that ordinary consumers or traders in specific transactional circumstances experience about the product mark (see Supreme Court Decision 2003Do3906, Jan. 26, 2006, etc.).

B) Determination

(1) External appearance

(a) common points:

(a) The Plaintiff 3 trademarks and the Defendant marks are common as follows.

(1) The term "dominated ginseng roots" consists of a shape in which each other sees a bridge by cutting down a bridge.

② Such ginseng roots is expressed in the straight line in this ginseng ppuri.

③ At the two sides of the ginseng reduction machine, six (6) years old ginseng’s six (6) years old ginseng was expressed in the shape of each.

④ The top part of the ginseng string was cut back to the string, the whole was cut in close shapes to the string, and the part of the string floor was completed by inserting the string at the bottom of the highly artificial ginseng roots.

(b) According to the above common points, the two marks are mainly composed of “the shape of two persons who are considered to be a mast and seated,” which has engraddddded the shape of “ginseng roots.” This structure depends on the overall increase of the observationer in terms of their size, location, and weight. As such, both marks are similar to the dominant increase in the overall light. In addition, even if a detailed composition is made, both marks are similar not only to each figure, character, location, size, and arrangement, but also to the colors given on the background, as a whole, red color color.

(b)Difference and evaluation thereof;

(a) In the case of Plaintiff 3’s trademark, the two marks are in the shape of the upper center (in the case of Plaintiff 3’s trademark), whereas the Defendant’s marks are in the shape of a multimond (including a large number of source). In the case of Plaintiff 3’s trademark, the shape of the shape of the body is formed in the shape of a lower body (in the case of Plaintiff 3’s trademark), and the bridge is composed of the shape of the body name (in the case of Defendant’s mark), while the shape of the body is in the shape of the body name (in the case of Defendant’s mark), the shape of the body of Plaintiff 3’s trademark is distinct from that of the body name, and the shape of the body is distinct from that of the body name (in the case of Plaintiff 3’s trademark), and the lower part (in the case of Plaintiff 3’s trademark), the shape of the body of Defendant 3’s trademark is two times in the end, and the detailed difference between the shape of the body.

However, the difference between the detailed form and color, which form the figure above, is to the extent that it can be easily distinguishable from the appearance of ordinary consumers or traders, and thus, it is difficult to easily leave the appearance of ordinary consumers or traders. Accordingly, this is merely a small difference that cannot be easily grasped as a egravating observation.

(b) In addition, while the contents of the ginseng figure(s) of the Plaintiff 3’s trademark are expressed inside the ginseng figure(s), there are differences between the Defendant’s mark’s ginseng figure(s) and the Defendant’s mark’s ginseng figure(s). In addition, there are differences in the content of the Defendant’s trademark’s ginseng figure(s) in terms of the “Symnasium and the suspension from office,” “Symna

그러나 ㉮ 둘 이상의 문자 또는 도형의 조합으로 이루어진 결합상표는 그 구성 부분 전체의 외관, 호칭, 관념을 기준으로 상표의 유사 여부를 판단하는 것이 원칙인바, 원고 제3상표의 문자 부분 중 ‘정관장’ 부분이 식별력을 가지고 있다고 하더라도, 원고 제3상표의 인삼 도형이 가진 식별력을 압도할 수 없으므로 원고 제3상표와 피고 표장들을 대비함에 있어 원칙으로 돌아가 전체적으로 관찰함이 마땅한 점, ㉯ 그 외 문자 부분 ‘홍삼’ 및 피고 표장들의 문자 부분 ‘고려홍삼’은 홍삼을 의미하는 한자이고, ‘6’, ‘6년근’, ‘6년근’의 문자 부분은 6년 동안 재배한 홍삼임을 나타내는 것이어서 모두 인삼이나 홍삼제품에 사용되는 경우 기술적 표장에 해당하여 그 식별력이 미약한 점, ㉰ 원고 제3상표의 ‘정관장’과 배열 위치상 대비되는 피고 표장들의 문자 부분인 ‘육년애성심’이나 ‘고려홍삼’은 글씨의 크기가 작고 표장 전체에서 차지하는 비중이 작거나 기술적 표장에 불과하여 외관상 식별력이 미약한 점, ㉱ 더욱이 ‘육년애성심’은 ‘6년간의 사랑과 정성으로 재배하였다’는 정도의 의미에 불과하여 사용상품인 홍삼제품과 관련하여 식별력이 미약한 점, ㉲ 그 아래의 ‘진실과 정직의 힘을 믿습니다’의 문자 부분 또한 글씨의 크기가 알아볼 수 없을 정도로 작아 표장 전체에서 차지하는 비중이 작고 광고 문안 정도로 인식되는 등 외관상 식별력이 미약한 점, ㉳ 앞서 본 바와 같이 원고 제3상표가 주지성이 있는 이상, 일반 수요자가 원고 제3상표의 식별력 있는 인삼 도형 부분을 인지한 상태에서 시간·장소를 달리하여 피고 표장들을 접하였을 때 오인·혼동할 우려가 있는 점을 고려하면, 위와 같은 문자 부분의 차이만으로는 위 양 표장의 혼동 가능성을 배제할 수 없으므로 유사성을 부정하기 어렵다.

(C) Reorganization

In full view of the above facts, it is reasonable to view that both marks have determined the overall appearance of the observationer in terms of the size, location, and weight of each figure as above, and it is not deemed that the shape of the ginseng is expressed in a common way, or it is merely the background of the “articles of Incorporation,” which is a part of the letter, as the shape is expressed in a common way, or that the shape of the ginseng is merely a part of the letter. Accordingly, the Plaintiff 3 trademark and the Defendant mark are similar because the dominant impression of their appearance is similar.

(2) Preparation for concepts and names

In terms of the concept, Plaintiff 3’s trademarks and Defendant’s marks combine all ginseng diagrams with “the shape of two persons who are considered to have mast and seated” and “red red ginseng cultivated for six years.” Moreover, since the composition of these ginseng diagrams depends on the overall increase, both marks as a whole lead to a similar concept.

However, the concept of "red ginseng product manufactured by the Jin-Seng Ginseng or the Korea Ginseng Corporation" can be added to the concept of "for six years" or "red ginseng product manufactured by the Defendant," and furthermore, in the name of "red," the Plaintiff’s trademark 3 can be viewed as "articles of Incorporation," and the Defendant’s mark can be viewed as "Seng-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-Se-S-Se-S-Se-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S.

(3) Determination of the Defendant’s assertion

(A) The defendant asserts that the two trademarks are not similar because they have been registered and frequently used in a large number of trademarks, which are composed of two ginseng in the healthy food industry, and there are no or weak distinctiveness of the ginseng figure among the plaintiff 3 trademarks.

(B) However, the defendant's above assertion is not accepted for the following reasons.

(a) There is no particular dispute between the parties as to the fact that the part in which the Plaintiff’s trademark was commercialized and arranged two ginseng at the time of the filing of the application has distinctiveness. However, the determination as to whether to acknowledge a claim for prohibition under Article 4 of the Unfair Competition Prevention Act shall be based on the time of the closing of argument in the fact-finding court (see Supreme Court Decision 2009Da22037, Jun. 25, 2009, etc.). Whether the part in the Plaintiff’s trademark No. 3 lacks distinctiveness is an element to recognize the same or similar part of the Plaintiff’s trademark and the Defendant’s mark, one of the requirements for the claim for prohibition as above, and thus, it should be based on the point at the time of the closing of argument in the fact-finding court. Accordingly, in determining this, it should be examined as to whether the part in the Plaintiff’s trademark No. 3, as of the time

In addition, the determination of whether a trademark containing a part of a combined trademark, which is registered or applied for registration, has no or weak distinctiveness that can function as a part of the trademark, can be made by considering the circumstances that are registered or applied for registration with respect to goods identical or similar to the designated goods. However, in such a case, the determination should be made by comprehensively taking into account the number of trademarks registered or applied for registration, the number of applicants or trademark right holders, the degree of intrinsic distinctiveness of the relevant part, the relationship with the designated goods, and the existence of circumstances in which it is deemed inappropriate to grant a specific person exclusive right for the public interest (see Supreme Court Decision 2015Hu932, Mar. 9,

(b) According to the overall purport of the statements and arguments in the evidence Nos. 20 and 21 of Eul, at the time of the closure of the argument in this case, 95 trademarks using the ginseng figure were registered as shown in the separate sheet Nos. 3, and approximately approximately 117 marks as shown in the separate sheet Nos. 4 are recognized as being used in the trading society.

(c) However, the main feature of Plaintiff 3’s trademark is that: (a) the ginseng figure of Plaintiff 3’s trademark is neither simply mained nor rained into the ginseng; (b) the two ginseng is composed of the two ginseng; and (c) the people are mained into the shape where they are sitting; and (c) six (6) the ginseng representing six (6) years old ginseng on the two sides of the stringg of the ginseng was predicted in a separate shape. Therefore, the existence of the essential distinctive character of the Plaintiff 3’s ginseng figure should be determined based on the following criteria: (i) whether the ginseng was inflammable; (ii) whether the already-known ginseng was placed in a different shape; and (iii) whether the ginseng was expressed in six (6) the ginseng gined.

(d) The registered trademark that meets all of the above criteria in the Schedule 3 list is as listed below (including not less than six separate numbers).

A person shall be appointed.

(e) The marks that meet all the above criteria in the attached list Nos. 4 are as listed below (including not less than six separate numbers).

A person shall be appointed.

(f) Meanwhile, Plaintiff 3’s trademark was applied on June 16, 2001, and registered on January 14, 2003. The Plaintiff’s market share in red ginseng products manufactured and sold; 74.8% in 2008; 73.95% in 2010; 64% in total red ginseng products market; 637% in 2004; 63% in 2006; 637% in 2005; 637% in 2006; 63% in 2007; 677 billion won in 2007; 3 billion won in 2005; 47 billion won in 2005; and 3 billion won in 206, 2005, 47 billion won in 206; and 3 billion won in 2005, 2006, 2005.

Furthermore, the following facts are acknowledged in full view of the contents of evidence Nos. 8 through 23, evidence Nos. 30 through 41, evidence No. 54, evidence Nos. 63 through 70, evidence Nos. 77, 83 and 84, and the purport of the whole pleadings.

㉳ 원고 제3상표는 특허청이 발행한 2016 자주 도용되는 상표 자료집에 수록되었다.

㉴ 원고는 2016. 12. 7. 특허심판원에 2016당3930호 로 (상표등록번호 6 생략) 상표의 등록무효심판을 청구하였고, 특허심판원은 2018. 6. 15. 원고의 위 심판청구를 기각하는 심결을 하였다. 원고는 이후 특허법원 2018허6429호 로 위 심결에 불복하여 위 소송이 진행 중에 있다.

㉵ 원고는 2016. 12. 7. 특허심판원에 2016당3933호 로 (상표등록번호 8 생략) 상표의 등록무효심판을 청구하였고, 특허심판원은 2018. 6. 15. 원고의 위 심판청구를 기각하는 심결을 하였다. 원고는 이후 특허법원 2018허6436호 로 위 심결에 불복하여 위 소송이 진행 중에 있다.

㉶ 원고는 2016. 12. 7. 특허심판원에 2016당3927호 로 (상표등록번호 7 생략) 상표의 등록무효심판을 청구하였고, 특허심판원은 2018. 6. 15. 원고의 위 심판청구를 기각하는 심결을 하였다. 원고는 이후 특허법원 2018허6399호 로 위 심결에 불복하여 위 소송이 진행 중에 있다.

㉷ 원고는 서울중앙지방법원 2015가합525174호 로 (포천인삼영농조합) 등 표장의 사용금지 등을 구하는 소를 제기하였고, 위 법원은 원고의 금지 청구를 인용하고 손해배상 청구 중 일부를 인용하는 판결을 하였다. 원고는 특허법원 2016나1202호 로 손해배상 청구 중 패소 부분에 대하여 불복하였고, 위 법원은 항소일부인용판결을 하였다. 피고는 대법원 2017다249332호 로 불복하였으나 심리불속행기각으로 위 판결이 확정되었다.

㉸ 소외 3은 2010. 6. 9. 지정상품을 상품류 구분 제03류 홍삼젤리, 홍삼사탕과자 등으로 정하여 출원하였으나 원고 제3상표와 유사하다는 이유로 등록이 거절되었다.

(g) The following circumstances revealed as a whole, i.e., ① the ginseng figure of Plaintiff 3 was deemed similar in terms of the criteria for determining the existence of intrinsic distinctiveness with the ginseng figure of Plaintiff 3 at the time of closing the argument in this case, and about five trademarks have been registered, and about five trademarks have been used (if the number is limited to six separate trademarks, the number is smaller than the number thereof), ② the Plaintiff has endeavored to maintain distinctiveness by filing a lawsuit seeking an invalidation trial against similar trademarks and emblems against the Korean Intellectual Property Tribunal and seeking the prohibition of use thereof. ③ The ginseng figure of Plaintiff 3 trademark is not limited to simply displaying and distributing the ginseng as raw materials of the designated goods, but it is not limited to those of the Plaintiff 3 trademark, and it is still unreasonable for the Plaintiff to use the two ginseng in terms of the shape of which the Plaintiff 3 trademark was composed of math and 6 years old ginseng as the main distinctive character of the trademark, and thus, it is hard to see that the Plaintiff’s distinctive character was widely known to the Plaintiff in terms of the size and location of the Plaintiff’s products and its inherent distinctiveness.

(4) The theory of lawsuit

When comparing the appearance, name, and concept of the mark from the perspective of the trader or ordinary consumers, taking into account all the factors that contribute to indicating the origin of the product, it is reasonable to view that the Plaintiff’s trademark and the Defendant’s mark are similar since the overall increase is similar, and if they are used together with the same or similar product, they are likely to cause misconception or confusion as to the origin of the product.

3) Whether the plaintiff's goods are confused with the plaintiff's goods

A) Relevant legal principles

Article 2 subparag. 1(a) of the Unfair Competition Prevention Act provides that “if a consumer misleads the origin of another person as being identical to that of another person’s goods, not only includes cases where the consumer misleads consumers as to the origin of the goods, but also uses a mark identical or similar to that of another person’s goods widely known in the Republic of Korea, so as to mislead consumers as to whether it is closely related to capital, organization, etc. between the subject of the product mark and users.” Whether an act of causing confusion with another person’s goods constitutes an act of causing confusion with another person’s goods ought to be determined by comprehensively considering the degree of recognition and distinctiveness of the product mark, degree of distinctiveness, degree of similarity and use of the mark, degree of similarity and mode of the mark, similarity of the mark, similarity of the product, and overlapping of customer class, etc. (see, e.g., Supreme Court Decision 2005Da60208, Dec. 27, 2007). 201.

B)Review

Considering the above facts, the aforementioned evidence, Gap evidence, Gap evidence Nos. 2, 7, 35, 85, 87, 90, and 91 as a whole, the following circumstances, which can be seen by comprehensively considering the purport of the entire pleadings, it is reasonable to deem that the defendant's use of the defendant's mark constitutes an act of causing confusion with the plaintiff's goods, which constitutes an act of causing confusion with the plaintiff's goods, by causing consumers or traders to misunderstand the origin of the defendant's goods, or by making the plaintiff's mark, which is a product mark widely known to the defendant in

① The Plaintiff’s market share of red ginseng products exceeds 70% per year in the red ginseng functional food market as first in the industry, and Plaintiff 3’s trademark is a product label indicating that it is red ginseng products manufactured and sold by the Plaintiff. The Plaintiff 3’s trademark is widely known in Korea. The ginseng figure portion among Plaintiff 3’s trademark is still distinguishable at the time of application as well as at the time of the closing of argument in this case.

② Plaintiff 3’s trademark and Defendant’s mark are similar in light of the overall observation from the standpoint of traders or ordinary consumers.

3. Comparing the design of the container and packing of a product bearing a mark indicating a quantity of marks actually traded, it can be seen that such product is considerably similar as the following table:

A person shall be appointed.

④ The Defendant, using the Defendant mark, produces and sells red ginseng-related products, such as red ginseng concentration, and the Plaintiff also produces and sells red ginseng-related products using the Plaintiff’s trademark 3. The Plaintiff’s products, like the Defendant’s products, are sold not only in the Plaintiff’s agency, but also in online market, such as Nonghyup or coo, No. 11. The Defendant’s mark and the Plaintiff’s third trademark are identical and similar to all red ginseng-related products, and the customer’s floor overlap.

⑤ Meanwhile, taking into account the circumstances from above to No.44, the number of stories, elderly stories, and foreigners on the customer floor of red ginseng-related products, general consumers or traders seem to have little possibility to mislead Defendant 1, 2, and 3 as to the Plaintiff’s subordinate brand. Furthermore, even if Defendant 1’s buyer did not confuse the source of the product, it seems that the product is taken over or it is unlikely to confuse the source of the product as a third party.

6) The Plaintiff advertised the so-called PPL method by which the master-authorized master of Plama, “after Taeyang,” had the Plaintiff’s trademark 3 exposed to the product “red red ginseng source” with the Plaintiff’s trademark, and the Defendant advertised on its website that the Defendant advertised the product “Ylue red ginseng” with the Defendant’s trademark “red red ginseng with good subrogation” (i.e., the Defendant did not provide an explanation to be able to understand).

7. According to the result of the survey conducted by the Korean Ministry of Foreign Affairs, a majority of those subject to the survey appears to have confused with the defendant's product attached with the defendant mark.

4) Sub-committee

A) Comprehensively taking account of the above, the Defendant’s act of manufacturing and selling the Defendant’s marks similar to the Plaintiff’s three trademarks widely known to the Defendant on red ginseng products, such as red ginseng concentrates identical or similar to the Plaintiff’s products using the Plaintiff’s three trademarks, constitutes an act of causing consumers or traders to confuse with the Plaintiff’s products, and constitutes an unfair competition act under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act.

B) Thus, as long as the Plaintiff produces and sells red ginseng-related products using the Plaintiff mark, barring special circumstances, it is recognized that the Plaintiff’s business interest is infringed or threatened by the Defendant’s unfair competition act as above. Thus, the Plaintiff has the right to seek prohibition and prevention against the Defendant pursuant to Article 4 of the Unfair Competition Prevention Act and to seek to remove the Defendant’s mark from the products created by unfair competition act.

As to this, the Defendant asserts that since replacing the mark after September 2016, the Defendant did not use the Defendant mark any longer and thus, the Plaintiff’s business interest is not infringed or threatened to be infringed due to the Defendant’s unfair competition act. However, the Defendant continues to engage in the business of manufacturing and selling red ginseng products, such as red ginseng concentration and red ginseng beverages, and the Defendant’s mark is not likely to be mistaken or confused with the Plaintiff’s product source because it was not similar to the Plaintiff’s three trademarks, or the Defendant’s act of manufacturing and selling the Defendant’s mark on the container of red ginseng products does not constitute an act of causing confusion with the Plaintiff’s products. In light of the above, it is difficult to conclude that the Defendant’s business interest is not likely to be infringed by the Plaintiff’s business interest by using the Defendant mark as of the date of closing the argument in this case

C) Ultimately, the Defendant may not indicate the Defendant’s mark on the product listed in the separate sheet No. 2, and shall sell, transfer, deliver, advertise, exhibit, export, or import each product listed in the separate sheet No. 2 that indicates the Defendant’s mark, and the Defendant’s mark shall not be indicated on the Defendant’s Internet homepage (website address omitted) and online shopping mall web page. In addition, the Defendant is obligated to eliminate all the Defendant’s marks on each product listed in the separate sheet No. 2 that indicates the Defendant’s headquarters, branch, office, place of business, factory, and warehouse and their packages, containers, promotional leafletss, books, contracts, transaction documents, and advertising materials.

3. Judgment as to claim for damages

(a) Occurrence of liability for damages;

As seen earlier, the Defendant’s act of manufacturing and selling the Defendant’s marks similar to the Plaintiff’s three trademarks widely known in Korea on red ginseng products, such as red ginseng concentration, constitutes an unfair competition act under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act as an act of causing confusion with the Plaintiff’s goods, which constitutes an act of causing confusion with the Plaintiff’s goods, and the Defendant’s intention or negligence is recognized. The Plaintiff engaged in the same type of business as the Defendant, thereby causing business loss due to the Defendant’s unfair competition act. Accordingly, the Defendant is liable for compensating the Plaintiff for damages caused by the

(b) Scope of damages;

1) The plaintiff's assertion

In accordance with the presumption provision of Article 14-2(2) of the Unfair Competition Prevention Act, the Plaintiff asserts that the amount of profit that the Defendant acquired by the unfair competition act of the Defendant is the amount of damages suffered by the Plaintiff. The Defendant’s profit amount is 124,537,49 won (406,694,963 won - 282,157,464 won (hereinafter “the amount of profit”) calculated by deducting the total sales amount of 406,694,963 won from the product bearing the Defendant’s mark (hereinafter “Defendant’s product”) to the total sales amount from 2013 to 2016,537,49 won, which is the amount equivalent to the manufacturing cost, from the total sales amount of 406,694,963 won, and damages for delay.

2) Whether Article 14-2(2) of the Unfair Competition Prevention Act is applied

Where a person whose business profit has been infringed by an unfair competition act claims compensation for damages under Article 5 of the Unfair Competition Prevention Act, if the infringer has received the profit from the infringement, the profits shall be presumed to be the amount of damages suffered by the person whose business profit has been infringed (Article 14-2 (2) of the Unfair Competition Prevention Act)

In full view of the facts acknowledged above, Gap evidence Nos. 75, 76, and Eul evidence Nos. 15 and 16, and the following circumstances, it is extremely difficult for the defendant to accurately calculate the amount of profit derived from an unfair competitive act as actual. Thus, it is difficult to compute or estimate the plaintiff's amount of loss in accordance with Article 14-2 (2) of the Unfair Competition Prevention Act.

① The evidence No. 75 (the current status of sales attached to reference materials submitted by the Defendant as of March 28, 2017) states the sales details of the Defendant’s product, but the materials to identify the change in the cost of materials, transportation, storage, etc. required for the Defendant’s product are not submitted, and thus, the Defendant’s limitation profit cannot be calculated.

② The product cost claimed by the Plaintiff is KRW 282,157,464, calculated by the Defendant’s total product cost from 2013 to 2015 by the ratio of the Defendant’s total product cost to KRW 69.4%. However, the Defendant’s total product cost is 06,694,963 won, which is the sum of the product sales of the Defendant’s product claimed by the Plaintiff. However, the Defendant’s total product cost is 0.2 to 1.9%, and it is difficult to deem that the Defendant’s total product cost is equally applicable to the Defendant’s product. (Additionally, in the year other than 2015 years, the entire product cost is not identical to the total sales and product sales in the case of 2015, but, in this case, if the product cost is presented, it means only the limit of the product cost at the time of production and does not reflect the expense at the time of one product sales).

③ Since the company that manufactured and sold health foods since 1981 recognized the quality of products, such as being designated as a business establishment subject to the Good Manufacturing Practice (GMP) by the head of Daejeon Regional Food and Drug Administration, and the Defendant’s publicity activities and sales policies, such as supplying red ginseng and green-melting products to convenience stores, are deemed to have impact on the sales of the Defendant’s products. Therefore, it cannot be readily concluded that the total sales of Defendant’s products were caused by the contribution of the Defendant’s mark.

3) Calculation of damages under Article 14-2(5) of the Unfair Competition Prevention Act

A) Ultimately, the instant case is deemed to have caused damage to the Plaintiff due to the Defendant’s foregoing unfair competition act, but it is extremely difficult to prove the fact necessary to prove the amount of such damage due to the nature of the relevant fact. Therefore, pursuant to Article 14-2(5) of the Unfair Competition Prevention Act, the court should recognize a reasonable amount of damage based on the purport of the

B) Considering the following circumstances, the aforementioned facts and the evidence as seen earlier, and the evidence as well as the evidence Nos. 8-2, 3, 75, and 79-1, and 79-2, comprehensively considering the overall purport of the pleadings, it is reasonable to determine the amount of damages to be paid by the Defendant to the Plaintiff due to the said unfair competitive act as KRW 50,00,000. The Plaintiff’s assertion on this part is with merit within the scope of the recognition as above.

① The evidence No. 75 provides that the aggregate of supply values (excluding value-added tax) for each type of Defendant’s product from 2013 to 2016 shall be indicated as follows:

The sum of the supply value of the Defendant’s product contained in the main sentence is 17,109,60 won of the Plaintiff’s assertion of 17,936,600 won for the 6-year Hong ginseng (excluding value-added tax) 17,109,400 won for the 6-year supply value. The 2,97,180 won for the Plaintiff’s assertion of 100,924,710 won for the 6-year Hong ginseng (100,97,180) shall be the sum of the value-added tax. The amount of the value-added tax shall be the sum of the supply value for the 6-year red ginseng 5,431,515 won for the 58,322,992 won for the Plaintiff’s assertion that the value-added tax should be added to the total sales value for the 6-year period, 116,442,000 won for the 6-year old red ginseng, 364,3646,5365.7.5.

Note 5) 36,695,502

② The Plaintiff asserts that the Defendant’s product’s sales amount of “Hau Hong ginseng” was KRW 36,695,502 (including value-added tax) as indicated in Gap evidence 75, plus KRW 100,249,000, based on the result of the fact-finding inquiry conducted on June 5, 2017, the supply price of KRW 136,94,50,500, as well as KRW 36,69,502.

피고 제품 중 ‘하루홍삼 고려홍삼정’의 매출내역 중 지에스리테일을 제외한 나머지 거래처에 대한 공급가액 합계액(부가가치세 제외)이 합계 33,444,672원임은 앞에서 본 바와 같다. 나아가 ‘하루홍삼 고려홍삼정’의 지에스리테일에 대한 매출내역에 관하여 보건대, 갑 제59호증, 갑 제60호증의 1 내지 3, 갑 제61호증의 1 내지 5, 갑 제81, 82호증, 을 제9호증의 2의 각 기재 및 영상과 제1심법원의 주식회사 지에스리테일에 대한 사실조회회신 결과와 변론 전체의 취지에 의하면 ㉮ 주식회사 지에스리테일이 2016. 4.경 피고로부터 상품 광고 이미지를 제공받아 “ ”와 같은 화면이 나오도록 구성한 동영상(갑 제59호증)을 제작하여 GS편의점 약 2천 곳의 점포에서 1달간 방영한 사실(피고는 위 동영상 제작경위에 관하여 직원의 실수로 다른 이미지를 보낸 것이라고 할 뿐 수긍할 만한 합리적인 설명을 못 하고 있을 뿐만 아니라 을 제17호증의 기재만으로는 위 주장사실을 인정하기 어려운데 달리 이를 인정할 만한 객관적 자료를 제출하지 못하고 있다), ㉯ 2016. 7. 7.경 피고 표장들과 색채의 구성만을 일부 변경하였을 뿐 나머지 구성은 모두 동일한 표장이 표시된 ‘하루홍삼 고려홍삼정’을 GS편의점에서 구입한 후 후기를 남기는 취지의 게시글이 인터넷 블로그에 게시된 사실, ㉰ 소외 4가 2016. 4. 22. 용인시 기흥구 상갈동 소재 GS편의점에서 위 표장이 표시된 ‘하루홍삼 고려홍삼정’ 제품을 구입한 사실, ㉱ 소외 4가 2016. 5. 10. 서울 강남구 대치동 소재 GS편의점에서 위 제품을 구입한 사실, ㉲ 소비자들이 편의점에서 위 제품을 구입하고 인스타그램에 다수의 게시글을 작성한 사실, ㉳ 피고가 2016. 4.경부터 2016. 7.경까지 주식회사 지에스리테일에 공급한 위 제품의 공급가액 합계액(부가가치세 제외)은 100,249,500원인 사실이 인정된다. 위 인정 사실에 비추어 볼 때, 피고가 주식회사 지에스리테일에 공급한 ‘하루홍삼 고려홍삼정’은 모두 실질적으로 피고 표장들과 동일한 표장을 표시한 제품이라고 봄이 타당하고, 그 공급가액 합계액은 결국 133,694,172원(= 33,444,672원 + 100,249,500원)이 된다.

As to this, the Defendant asserts that the Defendant’s sales amount of “Hau ginseng,” which used the Defendant’s mark, was limited to KRW 1,397,50,00, which is the value of the product manufactured by the Defendant’s logistics agent, which is the product price of the Defendant’s goods delivered by mistake on the NAS Triday, and that, other than the Defendant’s mark, only KRW 1,397,50,00, is the sales amount of “Hau ginseng,” which used the Defendant’s mark to be “Hau ginseng,” and that the Defendant’s assertion that only KRW 1,397,50,00 was the sales amount of Hau ginseng, Inc., Ltd., Ltd., the Defendant’s sales amount of Hau ginseng, which indicated the same mark as the Defendant’s mark from April 20, 2016 to July 2016, the Defendant’s assertion that Nonparty 4 purchased 1 to 3,000,000 evidence 1 to 17.

③ The sum of the supply values of the Defendant’s products of six-year red ginseng (many old ginseng) is KRW 56,788,426, as seen earlier.

As to this, the Defendant asserts that 56 boxes of 2,056 boxes of the shipment quantity from January 1, 2016 to July 31, 2016 are products that had not been indicated by the Defendant’s marks as existing inventory goods, and excluding this, the sales amount of the products actually used by the Defendant marks of the above 56,78,426 won is KRW 49,050,000) but there is insufficient evidence to acknowledge the fact that the Defendant’s marks were not indicated in the above 556 boxes of evidence No. 32-1 to 9, and there is no other evidence to prove otherwise. Rather, according to the fact that the Defendant used the Defendant’s marks on or after September 2016, the Defendant is the person of the Defendant, or according to the description No. 4-1 of the evidence No. 4, it cannot be viewed that the previous 56 boxes of inventory goods are not indicated by the Defendant.

④ Ultimately, from 2013 to 2016, the total sum of supply values (excluding value-added tax) for each type of defendant's product shall be 380,390,432 won as follows:

The sum total of the supply value of the Defendant’s product contained in the main sentence (excluding value-added tax) in the table 13,694,172 won of the red ginseng of KRW 13,788,426, 380, 390, 426 won of the gross amount of KRW 380,39,4322 won of the red ginseng of KRW 116,442,432 won of the red ginseng of KRW 116,442,60 of the six-year period of the 6-year period of the red ginseng of KRW 56,78,426, 380, 390,432 won of the red ginseng of KRW 56,78,426, the gross amount of the 6-year period of the 6-year period of the 10

⑤ The Plaintiff’s operating profit ratio from the sale of red ginseng products from 2013 to 2016 is about 14 to 16% (the purport of the Plaintiff’s evidence No. 79-1, 2, and the entire pleadings). However, since the Defendant’s mark is a mark similar to the Plaintiff’s trademark No. 3, it appears that the time or cost invested in the development of the mark would have been significantly low, it accords with the transactional notion that the operating profit ratio from the sale of Defendant’s product using the Defendant mark would be considerably higher than the above operating profit ratio.

On the other hand, the Defendant asserts that the Defendant’s operating profit ratio from 2013 to 2016 is merely about -1 to 9%, and that the Defendant’s operating profit ratio is significantly lower than the Plaintiff’s operating profit ratio. However, according to the evidence Nos. 76-1, 2, 3, and 14 of the evidence No. 76-2, as well as the reference materials (No. 3 pages) submitted by the Defendant on March 28, 2017, the Defendant’s operating profit ratio alleged by the Defendant is not related to the Defendant’s products, but is not related to the Defendant’s products (this refers to the amount included in this product sales, product sales, real estate sales, real estate rental, construction import, export product sales, etc.). Meanwhile, as recognized by the Defendant’s own, the Defendant’s assertion that the Defendant’s operating profit ratio in the Defendant’s entire sales amount is merely 0.2% to 1.9%, as recognized by the Defendant’s own. This part of the Defendant’s assertion is rejected.

④ As seen earlier, the Plaintiff’s “articles of Incorporation” was widely known in the Republic of Korea as a product mark indicating the Plaintiff’s goods, which are red ginseng products. Meanwhile, considering the Plaintiff’s trademark’s well-knownness of the Plaintiff’s trademark 3, the Plaintiff’s act of manufacturing and selling red ginseng products, which are the Defendant’s trademark similar to the Plaintiff’s trademark, ought to be considered as the Defendant’s act of causing confusion with the Plaintiff’s products by manufacturing and selling red ginseng products, which are originally manufactured and packaged by the Government. The ginseng and red ginseng products, which are the subject of the national resale business under the Ministry of Finance and Economy from 1948 to 1989, are exclusive in the production and selling of the products, and used the above brand while continuing to use the exclusive product by Korea Tobacco and Ginseng Corporation and the Plaintiff, etc., and thus, are widely known in the Republic of Korea (Articles 10 and 12-1, 2).

7) However, the Defendant’s mark is not itself but it is indicated on the packaging, containers, etc. of the Defendant’s product, which is a red ginseng product. In addition, comprehensively taking account of the facts acknowledged earlier, including the Defendant’s sales details and trends, and all the circumstances revealed by the aforementioned evidence and the purport of the entire pleadings, it appears that the Defendant’s effort to improve the quality of the content of the Defendant’s product, the publicity activities of the Defendant’s product, and the sales policies thereof, etc., are also likely to contribute to the sale of the Defendant’s product. Therefore, considering that the use of the Defendant’s mark similar to the Plaintiff’s mark 3, which is well-known mark, has contributed to the sale of the Defendant’s product as above, it is reasonable to deem that the amount of profits earned by the Defendant from the manufacture and sale of the Defendant’s product, as well as the contribution made by the Defendant to the use of the Defendant’s mark,

8) The Defendant asserts that, in light of the fact that the Defendant’s product does not state the phrase “articles of incorporation” in the Plaintiff’s trademark No. 3, instead of stating the phrase “S. Articles of incorporation” and “6,” and the Defendant’s trade name are combined, ordinary consumers may not confuse the Defendant’s product with the Plaintiff’s product, and that such circumstance should be considered in calculating the amount of damages. However, in light of the size and the overall part of the mark, the part of the Defendant’s product is deemed as having weak distinctiveness or technical marks, etc. in appearance, and the Defendant’s mark is identical or similar to the Plaintiff’s trademark No. 3, that the dominant increase and concept of the appearance of the Defendant’s product is identical or similar to the Plaintiff’s trademark. This part of the Defendant’s assertion is rejected.

C. Sub-committee

Ultimately, the Defendant is obligated to pay the Plaintiff damages for the damages of KRW 50,00,00 as a result of unfair competition and the damages for delay calculated by the rate of 15% per annum under the Civil Act from December 13, 2016 to November 17, 2017, which is reasonable for the Defendant to dispute as to the existence and scope of the obligation, as sought by the Plaintiff, as the date following the delivery of a copy of the complaint of this case, as sought by the Plaintiff after the date of unfair competition act.

4. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff and the defendant's appeal shall be dismissed as they are without merit.

[Attachment 2] List: omitted

[Attachment 3] List: omitted

[Attachment 4] List: omitted

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)

(1) The Plaintiff claimed in the petition of appeal that “the next day after the delivery of a duplicate of the complaint of this case,” but the purport of the appeal was corrected as above.

2) Although the Plaintiff selectively filed a claim based on an unfair competition act under Article 2 subparag. 1(c) of the Unfair Competition Prevention Act or a claim based on trademark infringement under the Trademark Act, as long as citing a claim under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act, the Plaintiff does not separately determine the remainder of the selective claim.

3) The Plaintiff is a selective claim, which is a claim for damages arising from an unfair competition act under Article 2 subparag. 1(c) of the Unfair Competition Prevention Act, or a claim for damages arising from trademark infringement. However, as seen in the above, some claims for damages arising from an unfair competition act under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act are accepted. As such, it is necessary to additionally examine a claim for damages arising from an unfair competition act under Article 2 subparag. 1(c) of the Unfair Competition Prevention Act or a claim for damages arising from trademark infringement. However, even in the case, it is obvious that the damages do not exceed the above recognition scope, and thus, detailed reasons

4) Meanwhile, the manufacturing cost calculated by such a method is KRW 282,246,304 (i.e., KRW 406,694,963 x less than KRW 69.4% x less than KRW 69.4%). Thus, the manufacturing cost of the Plaintiff’s assertion is 282,157,464.

Note 5) Plaintiff’s submission of the documents dated June 13, 2017 refer respectively to No. 26 of the pertinent Note 8.

(6) On January 1, 2016, the Defendant changed the trademark to a mark different from the Defendant mark on January 1, 2016 in the first instance trial. Of them, the Defendant asserted that the sales of the products used by the Defendant mark was KRW 49,050,000, but the Defendant changed the assertion as above in this court.

Note 7) The submission of the Defendant to the Defendant is 19,20 pages of the preparatory brief dated August 28, 2017.