Whether the title of the museum itself can be deemed to have the function of indicating the source of goods or business (negative in principle) / Cases where the title of the museum does not merely display the content of a creative production, but falls under “a mark indicating another person’s business” as prescribed by Article 2 subparag. 1(b) of the Unfair Competition Prevention and Trade Secret Protection Act.

Museum is a kind of drama work closely consistent with music and dancing in the formation and vision of a theater. Barring special circumstances, title is not deemed to have the function of indicating the name or content as a creative production of the relevant museum or user directly indicating the origin of the relevant product or business, barring any special circumstances. However, since musical work is used for business such as production and performance, it is difficult to regard that musical performance is used for the same title as the same musical work, such as production and performance, and if the musical performance continues to take place continuously or the follow-up musical performance using the same title is produced and performed, in light of specific and individual circumstances, such as the period and time of performance, the scale of visitors, advertisement and promotion degree, etc., and even if it appears that title of musical work or user of the relevant museum is clearly distinguishable from the content of the specific person’s performance, it does not appear that it constitutes “the specific specific person’s production and performance” under the Unfair Competition Prevention Act to the extent that it is clearly distinguishable from the content of other person’s performance.

Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act

[Plaintiff-Appellant] Plaintiff 2005Da67223 decided Jan. 25, 2007 (Gong2007Sang, 344)

Newcomer Co., Ltd. (Law Firm New Cancer, Attorneys Lee Tae-tae, Counsel for the plaintiff-appellant)

Defendant (Law Firm Ear excellent, Attorneys Park Jin-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na37973 decided January 11, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Museum is a kind of drama work closely consistent with music and dancing in the extreme composition and dynamics with each other. Barring special circumstances, its title appears to have the function of expressing the name or content as a creative production of the relevant community, and it is difficult to deem that it itself has the function of expressing the source of the goods or business (see Supreme Court Decision 2005Da6723, Jan. 25, 2007, etc.). However, musical work is used for business such as its production and performance. Thus, if the musical performance is continuously made through the same musical performance with the same title or subsequent musical performance with the same title, or if it is produced and performed by the same title with the same title, it appears that it falls under the name and content of the specific person’s musical performance, such as the number of performances, the period and degree of performance, and the specific contents of the advertisement or individual musical performance (see, e.g., Supreme Court Decision 2005Da6723, Jan. 25, 2007).

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following circumstances.

① At least from 2003, “mymical CATS” was produced and performed in English or in Korean only by the copyright holder and the Plaintiff duly authorized by him/her, and continued to hold a public performance with a certain content and level under the strict control of the copyright holder with respect to each of the copies, musical music, musical music, family affairs, and stage arts.

② The domestic performances of the CATS in English were conducted in Seoul, Suwon, Daegu, Busan, Daejeon, Gwangju, etc. from 2003 to 2008. The frequency of performances was 191 times in 2003, 58 times in 2004, 507, 140 times in 2007, 172 times in 2008, 146 times in 2008, 59, 201, and 201. The frequency of performances was 146 times in 2008, 2009, and 172 times in 2008.

③ From about five years to about 2003, the number of paid spectators who viewed the above performance has reached 849,859, and in relation to the above performance, advertisements and public relations through the media, such as television commercials of cultural broadcasting companies, have been conducted to a considerable extent.

Examining these circumstances in light of the legal principles as seen earlier, the mark of this case in the judgment of the court below, which is the English language of the "CATS" or its Korean translitation, is not merely a name indicating the musical content at least until the closing date of the argument in this case, but has reached a significant simplification of the specific person's musical production and performance by expressing the differentiated characteristics of the performance of the CATS, and thus, it is reasonable to view that the mark of this case in the judgment of the court below constitutes "a mark indicating the other person's business" under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act.

3. Nevertheless, the lower court determined that the instant mark did not function as a business identification mark. In so doing, the lower court erred by misapprehending the legal doctrine on Article 2 subparag. 1(b) of the Unfair Competition Prevention Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)