(영문) 서울고등법원 2020.10.22. 선고 2019나2058187 판결

(b) the removal of each of the above marks in its head office, branches, offices, warehouses, or vehicles on which ‘C' or ‘D' is indicated, packages, advertisements, fixed prices, transaction documents, signboards, labels, and labels on which the mark is indicated, and if it is not possible to remove only the mark, the destruction of the goods, packages, advertisements, fixed price lists, transaction documents, signboards, and labels on which the mark is indicated;

3. All costs of the lawsuit shall be borne by the defendant.

4. Each paragraph of Article 2 may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked.

It is primarily like paragraph 2.1.

Preliminaryly, the defendant shall not use each signboard listed in the separate sheet for the restaurant business in order to operate the restaurant business together with the Madio New.

(The plaintiff changed the purport of the claim as above in this court).

Reasons

1. Basic facts

A. Current status of the plaintiff restaurant

1) On February 27, 2017, the Plaintiff is operating a restaurant under the trade name of “C” (hereinafter referred to as “instant business mark”). The Plaintiff’s restaurant is located in Busan E, but the Plaintiff’s restaurant is located in G (hereinafter referred to as “the network”) around 1964 by the network F (hereinafter referred to as “the network”). Since G was established in around 1964 and its business continues to be operated for 55 years or longer from G to the Plaintiff via G.

2) The instant business mark, which is the trade name of the Plaintiff restaurant, has been used for not less than 5 years from the time the Plaintiff restaurant was established to the date of its establishment. In relation to the operation of the Plaintiff restaurant, the “J” (hereinafter referred to as the “instant business mark, etc.”) has been used together with the instant business mark.

3) The representative body of the Plaintiff restaurant granted knife knife to the two disputes, and knife knife knife knife knife, and knife knife knife knife knife. The Plaintiff restaurant provided knife knife knife with knife knife on the left part of the knife, and knife knife knife knife knife knife at the edge of the knife knife. The specific form of the Plaintiff restaurant

A person shall be appointed.

(b) Status of the defendant restaurant;

1) From March 2019, the Defendant began to operate the business in the name of "C" in Yongsan-gu Seoul Metropolitan City (hereinafter referred to as "Defendant restaurant") from March 2019.

2) The representative Qua New-do, representative of Defendant cafeteria, is the Dog-gu, and the Dog-gu. Defendant cafeteria provided Dog-gu Dog-ris to the edge of the Dog-gu and dug-ro Dog-ris, such as the next photo, after the Gg-gu provided Dog-gu.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, 17, 56, 66, 67 and Eul evidence No. 7 (including each number), the purpose of the whole pleadings

2. The plaintiff's assertion

(a) The primary cause of the claim;

The defendant's operation of the defendant's restaurant using the same trade name as "C" (the business mark in this case) or its abbreviation (hereinafter "the mark in this case") constitutes an unfair competition act under Article 2 subparagraph 1 (b) or (k) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") or a tort under Article 2 subparagraph 1 (b) or (k) of the Unfair Competition Prevention and Trade Secret Protection Act.

Therefore, the Plaintiff seeks the prohibition and disuse of the use as stated in the Disposition No. 2.

(b) Preliminary cause of claim.

The Defendant’s operation of the Defendant restaurant, including the instant business mark and the instant abbreviation mark, and the comprehensive image (including the method of providing services, including signboards, external images, and watchurururur) of the Plaintiff’s business, which constitutes the Plaintiff’s outcomes, constitutes an unfair competition act under item (k) where the Defendant intentionally imitates it as it is, thereby causing mistake and confusion as if it were “the division store of the Plaintiff restaurant”.

Therefore, the plaintiff seeks a prohibition of use, such as the statement in the preliminary claim, against the defendant.

3. Determination as to the prohibition of unfair competitive act among the primary claims

First of all, we examine the claims for prohibition of unfair competition under item (k) which the plaintiff is selected as one of the primary claims.

A. Legal principles necessary for judgment

1) Article 2 Subparag. 1(j) of the Unfair Competition Prevention Act (amended by Act No. 11963, Jul. 30, 2013); reflecting the purport of the Supreme Court Order 2008Ma1541, Aug. 25, 2010, “the act of infringing other’s economic interests by using the outcomes, etc. achieved by considerable investment or effort of other persons for its own business without permission in a manner contrary to fair commercial practices or competition order” was added as one of the unfair competition practices under the Unfair Competition Prevention Act (amended by Act No. 15580, Apr. 1, 2018).

2) (k) newly established provisions concerning new types of unfair competition acts that were not included in the scope of the application of the previous Unfair Competition Prevention Act. This is a supplementary general provision to regulate unfair competition acts by protecting newly emerging intangible outcomes with economic value and supplementing the fact that legislators did not prescribe all kinds of unfair competition acts, thereby allowing the court to more clearly determine new types of unfair competition acts.

3) In determining the ‘performance, etc. subject to protection’ as referred to in subparagraph (k), the reputation or economic value having the outcome obtained, customer attraction manpower embodied in the outcome of the project, and the importance and competitiveness of the outcome of the project in the relevant business sector shall be comprehensively considered. Whether such performance, etc. was made through an adequate investment or effort shall be determined specifically and individually in light of the substance and degree of the investment or effort put by the right holder in the industrial sector to which the performance, etc. belongs, but it shall be deemed that the economic benefit infringed upon by using the performance, etc. without permission does not belong to the so-called public domain where anyone can freely use it (see Supreme Court Decisions 2016Da276467, Mar. 26, 2020; 2019Ma6525, Mar. 26, 2020; 2019Da28249, Jun. 25, 2020).

4) Furthermore, in order to constitute “unauthorized use for one’s own business without permission in a manner contrary to the fair commercial practices or competition order as referred to in subparagraph (k), the following should be comprehensively taken into account: (a) whether the infringer and the infringer are likely to be in competition or in the near future; (b) whether the trade practices in the industrial sector including the outcome claimed by the right holder and the contents thereof are fair; (c) whether the aforementioned outcome, etc. may be replaced by the infringer’s goods or services; (d) whether the outcomes, etc., of the infringer’s goods or services were known to a certain extent; and (e) whether there is possibility of confusion among ordinary consumers (see Supreme Court Decisions 2016Da276467, Mar. 26, 2020; 2019Ma6525, Mar. 26, 2020; 2019Da28249, Jun. 25, 2019>

In addition, it is necessary to consider the subjective perception and bad faith of users including the purpose of use, the method of use, the degree of ‘performance, etc.', the time interval between the use (i.e., the use (i., the use), the impact on the motive(s) and the public interest, the balance of interests between the parties in addition to the elements mentioned above, in order to determine whether the use was made without permission in a manner contrary to fair commercial practices or competition order.

5) Meanwhile, in determining whether a certain person's act was used without permission for one's own business in a manner contrary to fair commercial practices or competition order, it is necessary to first consider whether the act constitutes an act of unfair competition under item (k) in accordance with the legal principles as seen earlier, and at the same time, examine whether the infringing person's act constitutes "use without permission for one's own business in a manner contrary to fair commercial practices or competition order." After examining whether the infringing person's act constitutes "use without permission for one's own business in a manner contrary to fair commercial practices or competition order", it is necessary to finally review whether the act constitutes an act of unfair competition under item (k) by examining the relation and comprehensively the relation between the "infringed interest, etc." and "use without permission contrary to fair commercial practices or competition order." If the need and intensity of legal protection as to the outcome, etc. are large, it may constitute an act of unfair competition under item (k) even in cases where the unauthorized use without permission is smaller than the extent that it violates fair commercial practices or competition order.

B. Specific determination

1) The assessment of ‘performance, etc.', which is an infringement interest, - the outcome made by considerable investment or effort, etc., should first be examined as to whether the instant business mark falls under the "performance, etc. subject to protection" as referred to in item (k).

A) Property value of the business sign of goods;

(1) Generally, goods and business marks perform quality assurance functions to indicate that the source of goods and services is derived from particular goods and business entities, and to ensure that the quality of goods and services provided in the same source is equal.

(2) Consumers shall memory information, such as the price, quality, reputation, and reputation, on goods and services obtained in the course of using specific goods and services. Furthermore, consumers will use past information, such as the price, quality, reputation, and reputation, in determining the purchase of identical goods and services in the future. In this context, consumers would normally act as an individual that enables the said information to be carried out. In other words, consumers can be deemed to recognize, associate with, and break down information, such as the price quality, reputation, and reputation of specific goods and services and their goods and services through goods and business marks.

On the other hand, the quality assurance function is to maintain good reputation for products and business entities.

The effect of giving motivations to continue and improve the quality of goods and services is that consumers are constantly able to perform their efforts, and the effect of reducing the effort and cost of collecting information in choosing future goods and services is that goods and services is equal in quality. When good quality is maintained for a long time, the reputation of good quality is high, and the quality assurance function becomes more and more effective for consumers. These effects are applied as positive factors in determining re-purchase (re-purchase) by consumers who have experienced the purchase of the goods and services in the past, as well as are likely to serve as positive factors in determining new purchase.

In addition, the reputation, credit and customer attraction of goods and business entities will also increase because the trust and high reputation of such quality have accumulated for a long time.

(3) Ultimately, trust on the reputation, credit, customer smoking workforce and quality accumulated by the goods and business entity in connection with the goods and services may be deemed as being embodied in the goods and business marks. Likewise, in a case where credibility on reputation, credit, customer smoking workforce and quality has a certain property value, the property value may also be deemed as being incorporated into the goods and business marks. Accordingly, the goods and business marks fall under “the benefit worth legal protection” from this point of view.

(B)an appraisal of property value for a product business mark;

(1) Determination of whether a product or business mark has "property value worthy of legal protection" is the same as determination of whether the accumulated reputation, credit, customer smoking personnel, and quality of the product or service, which are embodied in the product or business mark, has property value to a certain degree.

(2) Article 2 subparag. 1(a), (b), and (c) of the Unfair Competition Prevention Act provides special protection to goods and business marks widely known in the Republic of Korea. In determining whether a well-known trademark can be seen as widely known in the Republic of Korea, the precedents do not require any person to be known to all persons, but are sufficient to the extent known among traders or consumers within a certain area in the Republic of Korea. Whether a well-known trademark is widely known or not is one of the criteria for the period of use, methods, patterns, volume, usage, scope of transaction, etc., and whether it is objectively widely known under the social norms and social norms (see, e.g., Supreme Court Decision 2010Do6187, May 9, 2012). In determining whether a well-known trademark is widely known in the Republic of Korea, not only the degree of "in the Republic of Korea or within a certain region," but also the scope of "in the Republic of Korea, to the extent that it is widely known to the general public" (see, e.g., Supreme Court Decision 2017Da194.

(3) However, in the case of goods and business marks, which are difficult to readily conclude that they acquired the above well-known and well-knownness as a basis of consumers’ objective perception, there may be cases where the credibility of reputation, credit, customer attraction manpower, and quality accumulated in relation to goods and services, has "interest worthy of legal protection," which is not a well-known and well-known and well-known product or business mark. In such a case where evaluation is possible, even if the regulation is applied to the act of unfair competition under item (k) under the superior and comprehensive consideration of the pattern of the act with respect to the use of the business mark without permission, such regulation cannot be deemed as going against the legislative intent of item (k) so that the court can decide more clearly the new type of unfair competition act by supplementing the fact that the legislators did not prescribe all acts of unfair competition.

(4) On the other hand, the property value with such goods and business marks is the goods and services in question by consumers as a replacement for the goods and business marks, and their reputation, credit, and customer smoking personnel.

In order to determine whether a product or a business mark has "interest worthy of legal protection" through (k) through the process of connecting credibility in quality, it is necessary to pay attention to the above-mentioned aspect where the credibility of the product or service is embodied in the product or business mark and its property value is realized specifically.

(A) First, consumers shall memory goods and business marks and thereby goods and services;

It can be understood as the traditional process of a purchase decision to determine the purchase of goods and business marks by leaving information, such as the price, quality, reputation, reputation, etc. This can be understood as the traditional process of a purchase decision. This can be understood in the same level as determining the well-known and well-knownness of goods and business marks based on the objective perception of consumers. In the traditional process of a purchase decision, the property value of goods and business marks is likely to be in proportion to the degree (main and well-known) objectively widely known. Ultimately, from the perspective of the traditional process of a purchase decision, the property value of goods and business marks can be determined by taking into account the period of use, method of use, mode and scope of use, sales, market share, advertisement and publicity, methods, frequency and period of use, press reports, details of press reports, transaction circumstances, etc., which are the basic data to determine the property value of the goods and business marks, and can be determined by taking into account the property value of the goods and business marks accumulated in relation to the goods and services.

(B) Next, at the time of the closing of argument in the instant case, consumers obtain information on the prices, quality, reputation, reputation, and other information on goods and services (hereinafter referred to as “online information”) through online news, SNS, and can be seen as having a trade environment that determines the purchase of goods and services based on such information (in particular, this feature is shown in the restaurant business transaction environment (such as evidence 37-1, 2, and 85). In the process of new purchase determination through online information, it is identical to the above traditional process of the purchase determination that connects the value of goods and services such as price, quality, reputation, and reputation to consumers in the online market. However, the creation and development of such new purchase determination process should have an inevitable impact on consumers’ access to and development of online services in terms of information on goods and services, such as information on goods and services, without considering the aforementioned value of online goods and services (see, e.g., Ordinance of the Ministry of Land, Infrastructure and Transport).

Moreover, at the time of the closing of the instant case, the Korean wire Internet and smartphones, etc.

Considering the distribution rate of " smart devices that can connect the radio Internet" and the rate of use of wired and wireless Internet, the purchase decision process through access and acquisition of such online information can be seen as a considerable popular and universal phenomenon rather than limited phenomenon to a specific age, gender, class, area, etc., so the need and importance to consider in evaluating the property value of goods and business marks may be more vague. In addition, in the case of goods and business marks that are widely known only in a specific area through such transaction process, goods are goods depending on the quantity and quality of online information.

It can be seen that the credibility of reputation, credit, customer smoking personnel, and quality, which are embodied in the goods and business marks, can be rapidly disseminated and shared to consumers in other areas where the business marks are relatively less known.

On the other hand, online information is used to evaluate the property value of goods and business marks.

The importance of "Access and Acquisition Possibility" and "the quantity and quality of access and acquired information" can also be confirmed through the following media reports (No. 37 No. 1, No. 37-2). In particular, it can be seen that the business marks related to restaurant business, such as the instant business marks, have more important meaning.

In the article (S) of the I press on August 24, 2017, recent TV program and Internet blogs and social network services (SNS) have been revealed through the development of the Internet. No more than now hidden massages or satisfies, which are known only to himself. / her. At the 11th day of January 2019, T press (U) / Domestic travel is continuing with the family members : 10 per cent of 10 per cent of 7 per cent of 10 per year of 20 per year of 2017 and 30 per year of 20 per year of 17 per year of 20 per year of 200 per year of 20 per year of 200 per year of 20 per year of 10 per year of 200 per year of 25 per year of 30 per year of 200.

(C) On the other hand, online information, such as Internet news or tables, SNS, and tubes, which is the basic data for determination related to the traditional decision-making process, can play a similar role in assessing the property value of goods and business marks in relation to specific goods and business marks to potential consumers who are not immediately memory as soon as possible, in terms of assessing the property value of goods and business marks, such as the method, frequency, period, and period of advertising and publicity, the details of award, the details of press reports, and the details of press reports, and the details of judgment related to the new decision-making process through online information. In the context of assessing the property value of specific goods and business marks, potential consumers can also play a similar role in that they obtain specific information about the price, quality, reputation, reputation, etc. of goods and services through the above information. In order for consumers who can immediately memory and display specific goods and business marks immediately and purchase (re-purchase).

Therefore, this information is affirmed when evaluating the property value of goods and business marks.

The issue of whether a person can play an appropriate or important role is closely related to the volume and quality of the above "information access, possibility of acquiring" and "information access and acquired". Ultimately, as the source of each information includes a large number of media companies, broadcasting companies, search sites, and consumers, which have a high influence on the source of each information, the source of each information includes a large viewing rate or chemicalization rate, the large quantity of online information is large, the online information is large, the online information is located in the higher order in the relevant search result, the quality is higher, and the excellent evaluation is accumulated for a long time, and the value of property is evaluated.

(5) Therefore, the property value of goods and business marks, together with the weight and competitiveness of the goods and business marks in the field of the business, may be determined by a method of estimating the property value of the goods and business marks such as the period of use, method of use, quantity of use, scope of use, sales, market share, methods and frequency of advertising and publicity, advertising and advertising, details of press reports, quantity and quality of online information, transaction circumstances, etc.

C) The use period, use method, sales, etc. of the instant trademark mark

(i)the period of use;

Since its establishment in around 1964, the Plaintiff restaurant sold the same Mere New Zealand at the same place by the Plaintiff established by G via G via G, which is the deceased’s children, for more than 5 years (No. 7-1 through 5, No. 21-1, No. 21-2, and No. 56), and in general, in the case of the restaurant, the average number of persons whose names is over 3 to 5 years and the closure rate reaches 92% (No. 87, No. 888 of the A), the Plaintiff restaurant provided the same Mere new at the same place from the food industry to the same area for more than 5 years, and continued to operate the restaurant by raising sales of more than one billion won per year from itself.

(2) Method of use

(A) Since the opening of the business mark of the Plaintiff restaurant, the instant business mark and the J have been continuously used. The shapes of the Plaintiff restaurant signboards, which indicate the instant business mark, are as follows: “J” on the wall of the building and the outer parking lot signboards, and the instant business mark on the entrance and exit (Evidence A to 57).

A person shall be appointed.

(B) [쇠 Franf and Qua New] The Deceased, the founder of the Plaintiff restaurant, was the so-called Damond knmon house using knife knife knife knife knife knife knife knife knife knife knife. Since then, the above knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.).

A person shall be appointed.

On the other hand, the name of "Reduction of Capital" is "Reduction of Capital, which is a food material, and the number of State," which is the unit of "Reduction of Capital".

Although the trademark is merely a simple composite, so its essential distinctive character as a mark is weak, and it is likely that the trademark may frequently appear in many needs, most of the search results show the Plaintiff’s potasia in case of searching the image at the portal site (No. 27). The above potasia is introduced to a unique machine that can be seen only in the Plaintiff restaurant (Evidence No. 49) among the consumers visiting the Plaintiff restaurant. In light of these circumstances, the above potas New appears to have contributed to enhancing the reputation, credit, and customer smoking personnel of the Plaintiff restaurant.

(3) Sales

The Plaintiff restaurant sold the sales of KRW 8 billion in 2014, KRW 9.4 billion in 2015, KRW 11 billion in 2016, KRW 12.3 billion in 2017, KRW 11.9 billion in 2018, KRW 12.1 billion in 2019, and KRW 12.1 billion in cost in 2019 (Evidence A No. 7).

However, in 2017, the average sales of general restaurants of non-business type with approximately KRW 156 million, and among general restaurants with sales exceeding KRW 500 million per annum is merely about KRW 3.9% of the total restaurants (a report on the management status of food service 2018, A), and the trend of sales size and increase in sales of the Plaintiff restaurant can be inferred that the credibility of reputation, credit, customer smoking personnel, and quality of the Plaintiff restaurant is significantly high.

(4) As seen earlier, the credibility of Plaintiff cafeteria’s reputation, credit, customer smoking personnel, and quality through the period of use, method of use, sales, etc. of the instant business marks can be fully inferred that the reputation, credit, customer smoking personnel, and quality of the instant business marks have reached a considerable level of credibility on the reputation, credit, customer smoking personnel, and quality.

As such, credibility in reputation, credit, customer smoking personnel, and quality, which are embodied in the instant business mark, can be seen as a result of the Plaintiff’s considerable investment and effort (the Plaintiff, a founder, and G, by using the instant business mark for a long time, can be evaluated as succeeding credibility in reputation, credit, customer smoking personnel, and quality acquired by operating the Plaintiff restaurant using the instant business mark for the long time).

D) Details of press reports

(1) The Plaintiff’s restaurant is the central and local government, such as I, V, media, W, T media, X media, and Y media.

The article was introduced as Busan or the representative master's beauty in Busan or through magaziness, and a representative director's store across the country. Each article deals with the plaintiff's long tradition, quality, reputation, etc. (A Evidence No. 13-1 through 19).

(2) The Plaintiff’s restaurant was introduced to TV programs related to the introduction and exploration of the Z press AA, AB press H and AC press, such as AD (No. 11, No. 11, No. 2, and No. 50).

(3) On the homepage of Busan Metropolitan City Office, there is a 'AE' 'AF' 'AF' 'AF' 'AF' 'AE' 'AF' 'AF', which is introduced to the garment of the plaintiff's restaurant that uses only the highest level of the 40-year tradition as it is (Evidence A No. 8 1).

(4) Such media articles and broadcasting programs are not only published and broadcasted by media companies and broadcasting companies with high influence, but also broadcasted in programs with high viewing rate or harmony, and they include high evaluation of massage, quality, reputation, etc., and thus, they may act very positively in evaluating the property value of the instant business marks.

(e)the quantity and quality of online information;

(1) From K to K as of April 2019, the search of 3,00 or more Blographs was conducted. L to L, the search of 'C' was conducted by setting up 'C' as the key. The Defendant asserted to the effect that, based on the evidence Nos. 22 through 26, the search results at the portal site are different depending on who is searched at any time, and thus, the well-knownness or distinctive character of the instant business mark cannot be recognized. However, even based on each of the above evidence submitted by the Defendant, the search quantity of the instant business mark is limited to only the number, but also the highest location is compared to the search quantity for the national well-known association.

(2) In particular, the result of analyzing the search volume of the nationwide well-known house, including the Plaintiff restaurant, at the “AG,” which is a key statistical analysis site for K advertising, is as follows: (a) the Plaintiff restaurant accounts for two parts in the search volume (the sum between the instant business marks and J) (the sum between the instant business marks and the instant business marks; (b) even based only on the instant business marks, the sum of three parts) (Evidence No. 30).

(3) If L and K searchs by establishing the trade name of the national well-known house, including the Plaintiff’s restaurant, in the key page, the Plaintiff’s restaurant accounts for two to three parts in the quantity of the search result (including each number), and the Plaintiff’s restaurant accounts for two to four parts (including each number). Based on the upper half of 2020, the examination of the first half of 20 results shows similar results (No. 78).

(4) Comparing with each other of the national well-known places cited as a gymnasium 4 used to facilitate the search of a specific word in NN, the instant business mark is the most cited, and if both the instant business mark and the J are combined, the gap is greater (No. 44 and 45 of A), and the Plaintiff restaurant is located in the highest right after examining the number of hosting times of NN based on the upper half of 2020 (Evidence No. 78 of A).

(5) The “J” was first searched when searching the O massage place in L. At AO around December 2018, the highest number of the Busan recommended massages was published, and the Plaintiff’s restaurant was introduced to the third place (No. 38 No. 1, 2).

On the screen on March 2020, when the ‘satisfat', ‘satisfat', ‘satisfat', and ‘satisfat' are entered, each ‘C', which is the business mark of this case, is shown first in the result of the search on the part of ‘satisfat' (A evidence 79 1 to 3).

(6) As seen earlier, K’s c and J’s c as of April 2019 was searched into c’s kid, and 3,00 or more Blogs were searched. In this paper, the Plaintiff’s restaurant was introduced into the Plaintiff’s restaurant as “Slogs house of Busan’s scenic beauty,” “blogs house of massages,” “blogs,” and “blogs, etc. at the time of visiting an additional acid or O,” and introduced the Plaintiff’s restaurant as well as its long-term tradition, quality, reputation, reputation, etc. along with the Plaintiff’s cafeteria’s traditional beauty, quality, reputation, etc. (such as evidence No. 8-3, 16, 26, 33, etc.) as well as the Plaintiff’s traditional massage, quality, reputation, etc. (i.e., evidence No. 16, No. 388, Nov. 6, 198).

(7) As seen so far, the number of online information on the Plaintiff restaurant is very high, and the Plaintiff restaurant accounts for the highest axis in the frequency of search and the quantity of online information throughout the country. Even in comparison with the Plaintiff restaurant, the Plaintiff restaurant accounts for the highest axis in the portal site and SNS in charge of online information distribution. The Plaintiff restaurant is located at the highest level in the relevant search results, such as the “satch recommendation satch”, and the “satch”, and the “satch satch”, and the online information contains high level of the Plaintiff restaurant’s massage, quality, reputation, reputation, etc., and such online information appears to have been accumulated for a long time. Accordingly, the online information on the Plaintiff restaurant is very positive in evaluating the property value of the instant business mark in terms of its quantity and questioning.

(f) the proportion and competitiveness of the business sign to the food industry sector;

(1) Generally, the reputation, credit, customer smoking personnel, and quality of the service is strengthened in the business marks as described in the foregoing paragraph (a).

In addition, as seen earlier, the reputation, credit, and customer smoking personnel of the Plaintiff cafeteria are good.

The credibility is recognized and memory of the instant business mark to consumers as an individual unit, and the proportion and competitiveness of the instant business mark in the field of food service is very significant.

(2) Furthermore, in the field of food service, those who have acquired reputation, credit, and customer smoking human resources in the region have been making a big success in Seoul through the process of selling them in the department stores or opening a branch store in the department stores, and these trends and cases have been reported to a large number of people in the major daily newspapers (including the numbers, respectively). Therefore, in this respect, even though the Plaintiff restaurant is located in Busan, the reputation, credit, and customer smoking human resources in the Plaintiff restaurant, which is embodied in the instant business mark, are considerably high in need of protection.

g) Additional Review - The public interest and the balance of interest

I would like to examine whether deeming the instant business mark containing a conspicuous geographical name as subject to protection under item (k) can be justified in terms of public interest and balance of interest.5)

(1) The public interest perspective

The Unfair Competition Prevention Act is a mixture with business marks such as trademarks and trade names widely known in the distribution market.

The purpose of the Unfair Competition Prevention Act is to prevent acts that may occur in accordance with individual and specific cases and to maintain fair competition order. However, the Trademark Act is to create exclusive rights of trademark owners by procedural means such as registration of a trademark on goods and services and to protect the private interests of the registered trademark rights first, and these differences involve differences in the subject and methods of protection of both laws. The purpose of the Trademark Act is to contribute to industrial development and to protect the interests of consumers (Article 1 of the Trademark Act). The Unfair Competition Prevention Act provides that "the purpose of the Unfair Competition Prevention Act is to prevent unfair competition such as improper use of a trademark or trade name widely known in the Republic of Korea and to maintain sound trade order by preventing infringement of other persons' trade secrets (Article 1 of the Unfair Competition Prevention Act)." The Trademark Act is limited to the exclusive rights of registration if a trademark is registered without asking whether a specific mark is widely known, and thus, it is limited to the exclusive rights of registration. In other words, it is not necessary to protect the trademark right to be registered in accordance with the Unfair Competition Prevention Act (Article 201 of the Trademark Act).7.

On the other hand, the legislative intent of item (k) is to protect the intangible outcome with the economic value newly appeared and supplement the fact that legislators did not prescribe all the acts of unfair competition so that the court can determine the new type of unfair competition more clearly, thereby preparing a supplementary general provision to regulate unfair competition by reflecting the changing transaction concept in a timely manner.

In light of the above legal principles, with respect to a business mark that includes a conspicuous geographical name and may not be registered under the Trademark Act, it shall be examined whether the reputation, credit, customer smoking personnel, and quality of the business mark constitutes "the result, etc. subject to protection under item (k) by taking a certain property value, etc.", and at the same time, after examining whether the infringing person's act constitutes a case where the infringing person uses it for his own business without permission in a manner contrary to fair commercial practices or competition order, it shall be deemed that the infringing person's act constitutes "the result, etc." and "the use without permission contrary to fair commercial practices or competition order" as well as "the use without permission contrary to fair trade practices or competition order," which are superior and relative to the Trademark Act or contrary to the legislative intent of the Trademark Act and the Unfair Competition Prevention Act. Rather, it may contribute to the promotion of public interest by preventing misconception and confusion of the quality or source of service and by maintaining sound trade order or fair competition.

On the other hand, Article 15 (1) of the Unfair Competition Prevention Act provides that "where a trademark law contains any provision different from Articles 2 through 6 and 18 (3) of the Trademark Act, the provision shall be governed by that Act." There is no room to interpret that a mark which cannot be registered as a trademark under the Trademark Act cannot be an object of protection of the Unfair Competition Prevention Act, or that a trademark cannot be applied only to the trademark law and the Unfair Competition Prevention Act cannot be applied to the infringement of rights to a mark which is registered as a trademark under the Trademark Act. Furthermore, in light of the fact that the two Acts have different legislative purpose and regulatory method different from that of the competition law, even though they have common points that the two Acts enter the boundary of the competition law, it cannot be said that it does not necessarily mean that a mark which is not protected under the Trademark Act does not protect the Unfair Competition Prevention Act (see Constitutional Court Order 99Hun-Ba77, Sept. 27, 2001; Constitutional Court Order 2013Hun-Ba73, Feb. 26, 2015).

(2) The perspective of balancing interests

If the unauthorized use of a business mark assessed as legally worthy of protection is neglected, it may cause misconceptions and confusions about the quality or origin of the service, and may cause harm to the sound trade order or fair competition. On the other hand, if it is deemed that the trademark consisting solely of a conspicuous geographical name or a trademark consisting of a conspicuous geographical name and a technical mark that does not distinguish between a conspicuous geographical name and a conspicuous geographical name, etc. (hereinafter referred to as "geographical name business mark") is recognized as a protection under item (k), it may infringe on the freedom of mutual selection of a person who intends to use "geographical name business mark" and the freedom of business.

On the other hand, allowing free use of a "geographical name business mark" is closely related to the granting of trademark registration as absolute and exclusive right to a trademark, in accordance with the legislative intent of Article 33(1)4 of the Trademark Act (see, e.g., Supreme Court Decision 2014Hu2283, Jan. 29, 2015; Supreme Court Decision 2014Hu283, Jan. 29, 2015).

However, rather than recognizing absolute and exclusive rights to a particular geographical name business mark with a legally protected value, recognizing protection under item (k) individually and alternatively through the process of examining the interests of infringement and behavior patterns in order to prevent misconceptions and confusion about the quality or source of the service and to establish a sound trade order or fair competition cannot be deemed unfair from the perspective of balancing profits.

(h) Additional Review - Identification and proprietary value of the mark

(1) argument and determination that it is recognized as "J"

(A) The defendant asserts to the effect that "the plaintiff restaurant is recognized as "J" rather than the business mark of this case to consumers. In particular, the defendant asserts to the purport that "the plaintiff's "N" portion of "J" is not an additional expression, but an essential part of "AR sales store" and "the plaintiff's restaurant is distinguished from the plaintiff's 30th anniversary of 192 to the 30th anniversary of 192." (No. 1, No. 24) in the past, there was a restaurant using the trade name "AP" in the name in the vicinity of the Busan AP hotel (No. 21, No. 21), and around September 1972, there was a registered trademark of " Q" (No. 11).

(B) Considering the overall purport of the statements and arguments set forth in Gap 4, Gap 4, 56, 57, Eul 12 and 18 (including each number), the facts that J, along with the instant business mark, was used in signboards, name cards, physical issues, etc. in relation to the business of the plaintiff restaurant are recognized.

However, by integrating each of the evidence and the purport of the entire pleadings mentioned in paragraphs (c) through (e) above.

Comprehensively taking account of the following circumstances, it does not interfere with the evaluation that the “J” in relation to the business of the Plaintiff restaurant was used along with the instant business mark, which constitutes a “interest worthy of legal protection,” which is a “interest worthy of legal protection,” and is subject to the protection of item (k).

① The instant business marks in relation to the Plaintiff restaurant are recorded in the mutual register around August 25, 1994.

In addition, the instant trademark is also used in the signboards of the Plaintiff restaurant. The Plaintiff’s name operating the Plaintiff restaurant is the same as the instant trademark, except for the Plaintiff Company.

② As seen in the part “the details of press reports” or “the quantity and quality of online information” as referred to in paragraph (d) above, the Plaintiff restaurant is recognized and searched as “J” or the instant business mark, and there seems to be more cases where the Plaintiff restaurant is perceived, searched, and viewed through the instant business mark.

3. In general, consumers tend to refer to a mark simply, and such tendency may take place.

In light of the tendency, consumers are more likely to call the Plaintiff restaurant as the business mark of this case with a small number of letters.

④ In addition, the amount of online information referred to in the above clause (d) or the amount of online information referred to in the above clause (e)

As can be seen through the ‘quality' part, the majority of consumers seem to recognize the origin of the instant business mark and the source of ‘J'.

⑤ Not only appears to have been used with the Plaintiff’s permission (No. 24) but also the influence of reputation, credit, customer smoking personnel, etc. on the reputation, credit, customer smoking personnel, and quality of the relevant restaurant on the Plaintiff’s restaurant seems to have on the trust of the reputation, credit, customer smoking personnel, and quality of the restaurant. In addition, in the case of another restaurant that has used the trade name including the “AR”, it seems that the present was closed, and it seems that the reputation, credit, customer smoking personnel, etc. of the restaurant have on the reputation, credit, customer smoking personnel, and quality of the Plaintiff restaurant is likely to have on the trust of the Plaintiff restaurant.

(2) The assertion and determination that the instant trademark constitutes a tolerance mark

The Defendant’s purport that “the instant trademark falls under a tolerance mark and thus has no distinctive character.”

However, the above argument is rejected, since the evidence submitted by the defendant, such as the evidence Nos. 20-1 through 4, is not enough to deem that the business mark in this case has reached the degree of free and tolerance use between the partners.

(3) The assertion and determination that the instant trademark consists of a conspicuous geographical name and a technical mark

The Defendant combines a conspicuous geographical name and technical mark with the trademark of this case.

Although it is alleged that the instant business mark has no distinctiveness, as seen in the following sub-paragraph (i), it can be evaluated that the Plaintiff’s reputation, credit, customer smoking personnel, and quality accumulated for at least 5 years in relation to the Plaintiff restaurant constitutes “profit worth legal protection,” and that such determination can be justified from the perspective of public interest including the relationship with the Trademark Act and the balance of interests between the parties (see the above paragraph (g)), insofar as it can be seen that such determination can be justified from the perspective of the balance of interests between the parties (see the above paragraph (g)).

I) Integration of the review results

As seen earlier, in full view of the use period, use method, mode of use, scope of use, sales amount, methods, frequency and period of advertising and publicity, details of press reports, online information quantity and quality of online information, transaction situation, etc. of the instant business mark, together with the portion and competitiveness of the instant business mark in the relevant business field, it can be evaluated that the instant business mark falls under “profit that has property value accumulated by the Plaintiff for more than 5 years in relation to the Plaintiff restaurant, and is worth legal protection.”

Therefore, in order to finally determine whether the instant business mark constitutes an unfair competition act under item (k) or (c) by considering the relation and comprehensive consideration of the “infringed interest, etc.,” and the “unauthorized use, etc., which is contrary to fair commercial practices or competition order,” which is the form of the act, and then constitutes an unfair competition act under item (k), the following Section 2 will examine how the Defendant’s use of the “C” as business mark in the course of operating the Defendant restaurant can be evaluated from the perspective of “unfair commercial practices or unauthorized use, which is contrary to the order of competition.”

(ii) use without permission contrary to good practices of commercial transactions or competition order;

(a) the possibility of entering into competition or in the near future competition, the possibility of substituting demand and infringing on economic interests;

Although the plaintiff restaurant and the defendant restaurant are located in Busan and Seoul, in full view of the following circumstances, both restaurants are likely to be in competition with each other or in the near future, their demand is likely to be replaced, and the defendant restaurant infringes on the economic interests of the plaintiff restaurant.

(1) The number of domestic travels for visiting massages increases, and the weight of food tourism during domestic travel is 34.7% as of the year 2017 and annual increase by at least 10% (Evidence A 37 2).

(2) Furthermore, in the field of food service, those who have acquired reputation, credit, and customer smoking human resources in the region have become a new tendency to be successful in Seoul through the process of selling them in the department stores or opening a branch store in the department stores, and these trends and cases have been reported on a large number of daily newspapers (including various numbers).

(3) At the Plaintiff’s request, the AS institution conducted an investigation to ascertain the current status of mutual recognition. From July 3, 2020 to July 5, 2020, around 540 visitors visiting Plaintiff cafeteria for 3 days from July 3, 2020 to around July 5, 200: (a) confirmed that approximately 63.8% of the response parties visited Plaintiff cafeteria outside Busan; and (b) the visitors in the Gyeonggi area where the Defendant restaurant is located overlaps with the Seoul and the living zone. In the online investigation using the “weweb” web site (web) where the general public 1,005 people have an intention to visit the relevant restaurant, as to whether there was an intention to visit the relevant restaurant, there was an answer to the visit of Seoul 503 residents residing in Seoul and about 7.76% of the response to visit Seoul decentralization (No. 7.76).

(4) There are many cases in which users mispercing Defendant cafeteria as the point of the Plaintiff cafeteria and expected and visited the Plaintiff cafeteria. Moreover, among the visitors, the visitors mispercing the Plaintiff cafeteria as the point of the Plaintiff cafeteria, they made a letter to the effect that the Defendant cafeteria and the quality of the Defendant cafeteria had been lost due to the lack of expectation (including the number of pages) and put it online (including the number of pages). This can be seen as a empirical circumstance that the Defendant cafeteria, replacing the demand of the Plaintiff cafeteria, would infringe on the economic interest, such as the Plaintiff’s reputation and credit, or damaged the reputation and credit, etc.

B) Degree of the use(s)(s)

Since the business marks of Defendant cafeteria are completely identical to the business marks of this case, the degree of reproduction of ‘a result, etc.' is very strong.

C) The defendant's subjective perception and bad faith such as the purpose of use.

(1) The recognition map of the instant business mark

As seen earlier, the instant business mark was widely known to consumers at the time of opening the restaurant business as well as the following: (a) the period of use, method of use, sales (Article 1(c) of the instant business mark; (b) the details of press reports (Article 1(d)); and (c) the quantity and quality of online information (Article 1(e)).

(2) the similarity of signboards, boards and pots;

(A) [Comparison of Signboards]

In the case of a signboard, the most important thing is from consumers among the tangible objects on which the business mark is marked, and the comprehensive image of the original and the defendant signboard is very similar as follows.

As seen earlier, “J” shall be applied to the wall of the Plaintiff cafeteria’s building and the outer signboard, and “J” shall be applied to the entrance.

A. Each of the instant trademarks (No. 57, 58) is marked.

① The signboard of the Plaintiff cafeteria is divided into two parts: “AT” and “AU”, and is written in vertical length.

The wall signboards of the defendant restaurant are also composed of the same structure as that of the plaintiff's signboard, except that the part of the "N" of the plaintiff's signboard is missing, and the first letter of the "AV" of the "AU" is less than the first letter of "AW" of the "AW" which reduces right side.

A person shall be appointed.

In addition, in the case of the plaintiff's external signboard, the same letter of business in the immediate upper part of the signboard.

It is unique that the land price is written, and in the case of the external signboard of the defendant restaurant, it has the same characteristics as the plaintiff's external signboard, except that the part of "N" is missing.

A person shall be appointed.

③ Finally, the entrance signboards of the Plaintiff restaurant take the form of the signboard on which the instant trademark is written, in the white letter of the classical body on the top of the package, on the top of the package. However, the entrance signboards of the Defendant restaurant also put the door signboards on the front line in the white letter of the classical body on the top of the line, except those made up of the vertical plate, which are very similar to the Plaintiff’s signboard.

A person shall be appointed.

(b)[Comparisons of the board and potass] the gather of the board used in the defendant cafeteria;

In addition to both the two and the materials, the composition or service method of the "potiosa" provided in Qua New, is very similar to that of the plaintiff's restaurant.

A person shall be appointed.

(3) In relation to the operation of the Defendant restaurant, the Defendant did not provide an explanation to understand the circumstances in which the business mark identical to the instant business mark was used.

In this regard, the Defendant’s “Defendant’s restaurant” is operated by AX.

One of them is that the representative of the above company, as an expert in the food industry, has succeeded to the "BA," which is a AZ brand in the Republic of Korea, has opened and operated a number of restaurants, such as BC, BD, and BE, and opened the defendant restaurant on the extension thereof." However, the defendant's assertion that the defendant adopted and used the same business mark as the business mark in this case, not based on the plaintiff restaurant, is not acceptable.

(4) Therefore, in light of the degree of credibility of Plaintiff cafeteria’s personality map, reputation, reputation, credit, customer smoking personnel and quality, and the similarity of signboards, non-markets, and potasia New, etc., it is reasonable to view Defendant cafeteria used the same business mark as the instant business mark in order to without permission for the credibility of Plaintiff cafeteria’s reputation, credit, customer smoking personnel, and quality.

D) The possibility of confusion among consumers;

(1) Consumers' confusion

The instant business mark and the Defendant restaurant’s business mark are identical to those of the consumers;

In addition, it is evident that users visiting the Defendant restaurant have caused confusion of sources. Also, it is clear that the users visiting the Defendant restaurant "I have taken place in the braille of the point", "I have no house 0", "I have taken place in the Madong every time it comes to Madong", "I seem to have come to have come to Madong", "I have turned to Don't Don't Don't Don't Don't Don't Don't Don'," and "I have turned to Don't Don't Don't Don't Don't Don'," and "I have found Don's Don't Don't Don't Don't Don't Don't but Don't Don's other house."

(2) Merger between newspaper articles and online information

There is also newspaper articles that introduce the fact that the plaintiff restaurant was introduced to AC press AD and misleads the location of the relevant restaurant to the location of the defendant restaurant (No. 51 No. 1, No. 2).

In addition, in the online information such as the Internet site, the plaintiff is the defendant restaurant as follows:

The contents that can be misunderstood as a misunderstanding point of the restaurant are found.

In the event that “D” is entered in BF or BG, which is the site of massage search, the Plaintiff restaurant is searched as “D M stores” or “C (BH)” (Article A, No. 52-1, No. 2). In the case of “BI”, which is an indoor app (Ap), the Defendant restaurant is indicated as “D (M stores)” (Article A, No. 52-3). In the case of the Defendant restaurant “BJ website” column, which is the restaurant operator, the restaurant operator, “BJ website” column includes the contents related to the Plaintiff restaurant, such as “a deep history store which has been opened in 1964,” or “a place of remodeling the Korean house” (Evidence No. 36).

Such newspapers and online information shall be the source of consumers for Defendant cafeterias.

It seems that confusion will further be deepened.

(e) trade practices or fair competition practices;

Although it complies with fair commercial practices to provide cooperation or cooperation through contracts to consumers in order to use the well-known business mark of another person, the Defendant’s use of the instant business mark without permission violates commercial practices or fair trade order.

(f) public interest;

If the use of the instant business mark, which is evaluated as a legally worthy of legal protection, is neglected as seen in the above (g), it may not only cause misconceptions or confusions about the quality or source of the service, but also cause harm to the sound trade order or fair competition.

g) the aggregate of the results of the review;

Comprehensively taking account of the above, the Defendant’s use of “C” as the business mark while operating the Defendant restaurant constitutes the use of “other person’s performance, etc. without permission for one’s own business in a manner contrary to fair commercial practices or competition order.”

3) Taking into account the superior and comprehensive consideration of the interests of infringement and the attitude of action

The instant business mark can be evaluated as having a high level of property value as the Plaintiff’s credibility in the reputation, credit, and customer attraction quality accumulated for at least 5 years in relation to the Plaintiff’s restaurant. Moreover, the Defendant’s use of the Defendant’s business mark without permission constitutes a case that is highly likely to violate fair commercial practices or competition order.

Therefore, it is reasonable to view that the Defendant’s unauthorized use of the instant business mark constitutes an unfair competition act under item (k) when considering the benefits of infringement and the attitude of behavior.

C. Sub-committee

Thus, under Article 4 (1) of the Unfair Competition Prevention Act, the defendant does not use the "C" and the "D, its abbreviationd name, for restaurant business, for signboards, packages of goods, and advertising advertisements. ② Under Article 4 (2) of the Unfair Competition Prevention Act, the defendant has a duty to remove the above marks in its main office, branch offices, offices, warehouses, stores, "C" or "D in the vehicle," or in its packing, packing, advertising, fixed price lists, transaction documents, signboards, labels, and labels, and if it is not possible to remove only the marks, they have the duty to destroy the marks.

As such, as long as accepting the claim for prohibition of unfair competitive act based on item (k), one of the primary claims of the plaintiff that is selectively claimed, it is not determined as to the remaining primary claims and the conjunctive claims in the preliminary relationship.

4. Conclusion

Therefore, the Plaintiff’s claim against the prohibition of unfair competition based on item (k) of Item (k) of the primary claim should be accepted on the ground of its reasoning. Since the Plaintiff’s amendment and addition of the purport of the claim to the court, this court decides to modify the judgment of the first instance including the modified and added title, it is so decided as per

Judges

Judges Kim Jong-chul

Judges Park Jae-won

Judges Yoon Jae-ju

Note tin

1) The Plaintiff’s destruction of the goods indicated “C” or “D” and, in the event that it is impossible to destroy them, the Plaintiff’s modification of the purport of the claim to delete the parts of the goods. However, the Plaintiff’s removal of each of the above marks on the goods, etc. as stated in the Disposition No. 2 and the disposal of the goods, etc. bearing the mark is intended.

2) In determining whether a third party’s act constitutes a tort as it infringes on a claim, it shall be recognized that the third party violated the interests of creditors by either violating laws or regulations or violating good morals and other social order, even though being aware of the fact that it harms creditors. In such a case, whether such act is unlawful shall be determined on an individual basis by taking into account the content of the claim infringed, the mode of the infringement, the intent of the infringer, and the existence of the year when the infringer committed the act, etc., but the decision shall be made by comprehensively taking into account the need to guarantee the freedom of trade, public interests including economic and social policy factors, and the balance of interests between the parties (see, e.g., Supreme Court Decisions 2006Da9446, Sept. 21, 2007; 2010Da7538, Sept. 13, 2012). In addition, where two fundamental rights conflict over a legal relationship, the Supreme Court en banc Decision 2082Da208288, supra.

3) In the case of the distribution of information through online, such as SNS:

4) Maligs: one form of Meta data posture that facilitates identification by attaching ‘Mata data post' mark before a specific core. The words with Maligs may be conveniently searched in SNS.

5) The perspective of balance between the public interest and the parties’ interests is more appropriate to determine whether the unauthorized use of the “public interest” is against fair commercial practices or competition order. However, it may be more appropriate to examine the benefits and attitudes of infringement and the degree of conduct in relation to the act of unfair competition in the final evaluation stage. However, in the case of the instant business mark, it is necessary to examine whether it constitutes a “interest worthy of legal protection.”