[1] The case holding that where the representative director of a company who infringed the trademark right has been involved in the actual management of the company before the date of his taking office under the corporate register and infringed the trademark right against the trademark right holder, the trademark right holder can seek a prohibition and prevention of the infringement based on his independent status against the representative director other than the company

[2] The case holding that a standard income rate of the National Tax Service cannot be calculated on the ground that a reasonable profit rate cannot be calculated on the basis of a profit and loss statement prepared according to the financial accounting method, which does not distinguish the unit price and sales amount of each product in calculating profits received by the infringer under Article 67 (1) of the Trademark Act, in addition to those which infringe the trademark right of the trademark right holder, among the products manufactured and sold by the infringer

[1] The case holding that where the representative director of a company who infringed the trademark right has been involved in the actual management of the company since more than the date of his taking office in the corporate register and has committed an infringement of trademark rights against the trademark right holder, the trademark right holder may seek the prohibition and prevention of the infringement of trademark rights based on his independent status against the representative director other than the company

[2] The case holding that the National Tax Service standard income rate cannot be calculated on the grounds that the profit and loss statement prepared according to the financial accounting method that does not distinguish the unit price and sales amount of each product in calculating profits received by the infringer in accordance with Article 67 (1) of the Trademark Act, where the trademark owner's own trademark or another trademark owner's trademark is attached even though the trademark right holder's trademark right has been infringed on among the products manufactured and sold by the infringer

[1] [1] Article 65 of the Trademark Act, Article 750 of the Civil Act / [2] Article 67 (1) of the Trademark Act, Article 750 of the Civil Act

[Defendant-Appellant] Shakiki (Attorney Su-gil et al., Counsel for defendant-appellant-appellant)

Defendant 1 and two others (Law Firm Future, Attorneys Park Jong-woo et al., Counsel for the defendant-appellant)

1. The Defendants:

(a)No person shall produce, sell, distribute or export (attached Form 1 and 2) any excess carft products for displayers, their packaging paper, packing containers, packing materials and advertising advertisements using the mark;

(b)each finished product, half-finished product, packing paper, packing paper, packing paper and advertising advertisement kept in each office, factory, warehouse, store and store;

2. The Plaintiff:

(a)(1) As from September 2, 1999, Defendant 1: (a) as well as as from September 2, 1999

(2) Defendant 2 shall pay 7,029,070 won with an annual interest rate of 5% from the 4th day of the same month to the 26th day of May 2000, respectively, and 25% per annum from the following day to the date of full payment.

(b)The defendants shall publish the advertisement in one advertisement column (attached Form 3) in a daily newspaper published nationwide not later than two months from the date this judgment became final and conclusive, in the size of 15 cm wide and 20 cm long and 20 cm long, in the name of the 25th new lighting, the name of the advertising person, the name of the 17th class high-class high-class certified photographer, the main body of the advertising person as the 12th class new lighting body.

3. The plaintiff's remaining claims against the defendants are dismissed.

4. Of the costs of lawsuit, the part arising between the plaintiff, defendant 1 and defendant 2 shall be divided into three parts, one of which shall be borne by the plaintiff, and the remainder by the above defendants, and the part arising between the plaintiff and defendant 3 shall be borne by the same defendant.

5.Paragraphs 1 and 2-1 (a) may be provisionally executed.

The decision as referred to in Paragraph (1) and paragraph (1) of this Article that Defendant 1 shall pay to the Plaintiff the amount of KRW 1,057,136,400, KRW 84,687,600, and KRW 84,687,600 per annum from the day after the copy of the complaint of this case was served on the above Defendants to the full payment date, and that Defendant 1 and Defendant 2 shall publish the advertising paper in one advertisement column among daily newspapers published nationwide within seven days from the day this ruling was served on the Defendants, and Defendant 3 shall respectively publish the advertising paper in attached Form 5.

1. Basic facts

The following facts may be acknowledged by taking into account the whole purport of the pleadings in each of the statements in Gap evidence 1 through 3, Gap evidence 4-1 through 65, Gap evidence 5, and Gap evidence 6-1 through 7, and the plaintiff and defendant 3 corporation (hereinafter referred to as the "defendant company") as to the plaintiff's assertion, the above defendant's confession pursuant to Article 139 of the Civil Procedure Act.

A. Since its establishment in Japan around 1937, the Plaintiff Company has been engaged in the manufacture and sale of Kameras and sound machinery, etc., and has grown into a world-widely well-known company. From around 1973, in Korea, the Plaintiff Company registered items such as the above Kameras as its registration number No. 31982, and operated the manufacture and sale business of the above Kameras, etc. (hereinafter “the trademark of this case”) and reached the recognition of the trademark of this case.

B. The Plaintiff Company registered the trademark of this case with the registration number No. 35568 on March 9, 1984, as well as its registration number, when it starts to manufacture and sell excess car creamage, etc. by expanding its business scope to several pages.

C. The Defendant Company is a company established on January 30, 1997 for the purpose of manufacturing and selling computer peripheral devices, and the Defendant 1 is working as the representative director of the Defendant Company from June 29, 1998, and the Defendant 2 is working for the delivery business after receiving a manufacturing of computer peripheral devices from the “detailed (trade name omitted) factory located in the Dong Dong-dong (Sposidong omitted).”

D. Around October 1997, Defendant 1 entered into a contract for the supply of goods with the subcontractor, including Defendant 2, etc., to receive an amount of 300 won in a unit price of the cargo storage, and requested Defendant 2, etc. to forge and attach the instant trademark and marks indicating that the goods of the Plaintiff Company are the goods of the Plaintiff Company (hereinafter collectively referred to as “instant trademark, etc.”).

E. As between October 1997 and January 11, 1999, Defendant 2 manufactured 282,292 kackers kackers, which forged the trademark, etc. of this case, and supplied 84,687,600 won (=products 282,292 x unit price 300 won) to the Defendant Company.

(f) Defendant 1, as well as 282,292 products listed in the above paragraph (e) above, exported to Singapore, etc. 91,359,024 won (in case of products = 391,532 x 2.11 US dollars x 2.11 US dollars x 1,200 x the above unit price and exchange rate, there is no dispute between the parties as to the above unit price and exchange rate) after additionally being supplied with 391,532 storages of total amount of 391,532.

G. Defendant 1 and Defendant 2 were indicted for violating the Trademark Act due to each of the above acts in Seoul District Court (Case Number: 9Da520), each of which was sentenced by the same court on March 25, 199 to Defendant 1, who was sentenced to one year and six months of imprisonment, and one year and one year of suspended execution to Defendant 2 on October. The above judgment against Defendant 2 became final and conclusive around that time, and the above judgment against Defendant 1 was reversed from the Seoul District Court Appeal Division (Case Number: 9No3473) to Defendant 1 on May 19 of the same year by the above Defendant on May 19 of the same year, and the same court was sentenced to a suspended sentence of two years of imprisonment to that person, and the above appellate judgment became final and conclusive around that time.

2. Determination as to the defendants' claims prohibiting infringement of trademark rights

A. Determination on the cause of the claim

According to the above facts, it is reasonable to deem that the defendants infringed or are likely to infringe the plaintiff's trademark right of this case. Thus, the defendants are obligated not to produce, sell, distribute, or export the excess kart mileage products using the trademark of this case and their packaging sites, packing containers, packing containers, advertisements, and finished products, semi-finished products, packaging containers, packaging containers, containers, and advertisements kept in each office, factory, warehouse, place of business and store, unless there are special circumstances.

B. Determination on Defendant 1’s defense

Since the infringement of the trademark right of this case was based on the status of the representative director who is a professional manager of the defendant company, the civil liability such as the prohibition of trademark infringement is limited to the defendant company, and the above defendant, who is a professional manager, is not liable to the defendant company.

The facts that Defendant 1 was involved in the actual management of the Defendant Company from October 1997, which was much earlier than June 29, 1998, when Defendant 1 was appointed as the representative director of the Defendant Company, and committed the infringement of the trademark right of this case against the Plaintiff as well as the fact that Defendant 1 was involved in the actual management of the Defendant Company. As such, the Plaintiff can seek the prohibition and prevention of the infringement of the trademark right of this case against the said Defendant’s individual. Thus, the said defense by Defendant 1 is without merit.

3. Determination on the claim for damages against Defendant 1 and 2

(a) Occurrence of liability for damages;

According to the above facts, Defendant 1 and 2’s infringement of trademark right of this case constitutes a tort against the Plaintiff, who is a trademark right holder. Thus, the above Defendants are liable to compensate for damages suffered by the Plaintiff due to each of the above infringement unless there are special circumstances.

B. Scope of liability for damages

Furthermore, as to the amount of damages that the above Defendants are liable, if the owner of the trademark right claims compensation from the person who has intentionally or negligently infringed the trademark right for damages caused by the infringement, the profits gained by the infringer shall be presumed to be the amount of damages suffered by the owner of the trademark right (Article 67(1) of the Trademark Act). The defendant 1 received total 391,532 knife ck ck ck k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k.).

As to the method of calculating profits acquired by Defendant 1 from the infringement of the trademark right of this case, the Plaintiff asserted that the amount of profits earned by Defendant 1 should be calculated as 275,796,007 won (=amount of 991,359,024 x 0.2782) considering the ratio of 27.82%, which is the ratio of sales cost, sales cost, and general management cost, to the sales revenue from the sales revenue and loss statement of Defendant Company 198 (No. 2.14%) in terms of the sales revenue and loss statement of 1998 (No. 2.617,265,99,024 x 0.2782). Defendant 1 asserted that the amount of profits earned from Defendant 1’s above sales should be calculated as 275,79,000 won (amount of 91,359,024,000 won) in terms of profits ratio.

살피건대, 갑 제2호증, 갑 제6호증의 1, 5 내지 7의 각 기재에 변론의 전취지를 종합하면, 피고 회사가 1998년 당시 이 사건 상표권 침해행위에 의한 제품 외에 피고 회사 자신, 또는 소외 주식회사 엡슨의 상표를 사용한 프린터용 잉크 카트리지 제품도 제조·판매한 사실, 위 각 제품은 그 각 상표별로 단가를 달리 하여 국내에서 판매되거나 외국으로 수출되었던 사실을 각 인정할 수 있는바, 위 인정 사실 및 재무회계의 방식에 따라 작성되는 손익계산서는 관리회계의 방식에 따라 작성되는 회계장부와는 달리 제품별로 원가계산을 하는 것이 아니라 당해 회계기간 동안 회사가 생산 및 판매하였던 모든 제품에 대하여 종합적으로 원가계산을 하여 작성되는 점 등에 비추어 볼 때, 원고와 피고 1이 위 각 계산방식의 토대로 삼고 있는 을 제2호증의 2의 기재만으로는 피고 1이 이 사건 상표권 침해행위에 의하여 판매한 제품에 대하여 그 고유의 합리적인 이익률을 산출해 내기에 부족하고, 달리 이를 인정할 증거가 없으므로, 위 당사자들 주장의 위 각 계산방식은 받아들이지 아니한다.

4. Determination on the defendants' claims to recover their credit

Defendant 1 and 2 as an individual, or as the representative director of the defendant company, are fully recognized in light of the empirical rule that the defendant injured the plaintiff's business credit by infringing the trademark right of this case as seen earlier. Thus, the defendants are obligated to publish the advertisement in one advertisement column (attached Form 3) in daily newspaper published nationwide within two months from the date this judgment became final and conclusive, with the size of 15 cm wide and 20 cm long and 20 cm wide, and the title of the 25th new lighting, the name of the advertising person, and the name of the 17th high-class high-class high-class certified manufacturer, the main body of the 12th high-class new lighting.

5. Conclusion

Therefore, the defendants are obligated not to produce, sell, distribute, or export listed goods and their packaging sites, packing containers, advertising advertisements, and to discard finished products, semi-finished products, packaging sites, packaging sites, packing containers, containers, and advertising advertisements stored in each office, factory, warehouse, place of business, and store. Defendant 1 is obligated to dispose of each of the above listed goods of the listed goods, semi-finished products, packing sites, packaging sites, packing containers, and advertising advertisements. The above damages to the plaintiff are KRW 82,282,798 on the records that the copy of the complaint of this case was delivered to the above defendant from September 2, 199; Defendant 2 is clearly obligated to issue the above damages to the above defendant from September 4, 199; the above damages for delay from the date following the date on which the copy of the complaint of this case was delivered to the above defendant are clearly stated within 200 days after the date on which each of the above judgment of this case is delivered; and the defendants' claims for damages for delay within 25 days after each of this case's per annum 26.

Judges Lee Sung-ho (Presiding Justice) (Presiding Justice)