[1] In a case where the Fair Trade Commission ordered correction on the ground that Gap corporation operating a package glass container manufacturing business's advertisement "glass license to obtain a patent with heat-resistant glass constitutes Article 3 (1) 1 of the former Act on Fair Labeling and Advertising, the case holding that the judgment below erred by misapprehending the legal principles, although it was not immediately determined that the above labeling and advertising was false or exaggerated advertising, and thus, it did not constitute a false or exaggerated advertising

[2] The meaning of the so-called "non-permanent advertising" prohibited by Article 3 (1) 4 of the former Act on Fair Labeling and Advertising

[3] In a case where there is a concern that certain food or a product directly related to such food is likely to be subject to objective grounds as to the harmfulness of human body, whether the advertisement referring to the possibility of harm to human body or the risk of such competitive product or pointing out such risks is prohibited as a malicious advertisement (negative)

[1] The case holding that the court below erred in the misapprehension of the legal principle as to the "heat/she has no provision specifically defined the requirements of heat heat glass or official criteria to determine whether the products fall under heat heat glass, and thus, the court below erred in the misapprehension of the legal principle as to the "heat" merely referring to what glass products are referred to in the Korean Industrial Standards, even if the products do not meet some quality standards of heat glass established in the Korean Industrial Standards, and thus, it can be concluded that Gap company's advertisement satisfies the quality standards of heat glass as stipulated in the Korean Industrial Standards as a matter of course, unless there are special circumstances to deem that general consumers are aware of the same purport.

[2] Article 3(1)4 of the former Act on Fair Labeling and Advertising (amended by Act No. 11050, Sep. 15, 2011) and Article 3(4) of the former Enforcement Decree of the Act on Fair Labeling and Advertising (amended by Presidential Decree No. 24081, Sept. 5, 2012) are advertisements that are likely to impair fair trade order by slandering or impairing only some of the disadvantageous facts with no objective grounds for other enterprisers, etc.

[3] In light of the fact that consumers have high awareness of danger in relation to the safety of food or products directly related to food or any harm to the human body and make every effort to avoid such danger in advance falls under the right of legitimate choice granted to consumers, if there is a concern that certain food or products directly related to such food are likely to have objective grounds for harm to the human body and in reality controversy, it shall not be concluded that, even if the level of harm or harm is not clearly proven scientificly, it shall be prohibited as a malicious advertisement with the contents pointing out the possibility or risk of harm or an advertisement with the contents pointing out, which might disrupt fair trade order without permission.

[1] Article 3(1)1 and (2) of the former Act on Fair Labeling and Advertising (Amended by Act No. 11050, Sep. 15, 201); Article 3(1) of the former Enforcement Decree of the Act on Fair Labeling and Advertising (Amended by Presidential Decree No. 24081, Sep. 5, 2012) / [2] Article 3(1)1 and (2) of the former Act on Fair Labeling and Advertising (Amended by Act No. 11050, Sep. 15, 2011); Article 3(1) of the former Enforcement Decree of the Act on Fair Labeling and Advertising / [3] Article 3(1) of the former Act on Fair Labeling and Advertising (Amended by Presidential Decree No. 24081, Sep. 15, 2011)

Suwon glass Co., Ltd. (Law Firm Dazel, Attorneys Dog-dam et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Kang-ho, Attorneys Mediation and 1 other, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu12271 decided February 16, 201

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

The grounds of appeal are examined.

1. As to the ground of appeal as to whether the patent invention constitutes false or exaggerated advertisements

Article 3 (1) 1 of the former Act on Fair Labeling and Advertising (amended by Act No. 11050, Sep. 15, 201; hereinafter “former Act”) and Article 3 (1) of the former Enforcement Decree of the Act on Fair Labeling and Advertising (amended by Presidential Decree No. 24081, Sep. 5, 2012; hereinafter “former Act on Fair Labeling and Advertising”) prohibited under delegation of Article 3 (2) of the same Act refers to an advertisement that is likely to undermine fair trade order by deceiving or misleading consumers in a manner of informing of false facts or excessively unfasible facts. In such cases, whether the advertisement is likely to deceive or mislead consumers. Whether the advertisement is likely to deceive or mislead consumers should be determined objectively based on the overall and extreme increase in the advertisement, etc. (see, e.g., Supreme Court Decision 2002Du65627, Jun. 27, 2003; 206Du60675, Jul. 26, 2006).

On the other hand, the parties were unable to have the opportunity to submit arguments and certifications due to the circumstances for which it is difficult for them to be responsible prior to the closing of pleadings, and the subject matter of the allegation and certification falls under the facts requiring proof that can depend on the outcome of the judgment, etc., where rendering a judgment against the parties without giving the parties an opportunity to submit the arguments and certification is contrary to the procedural justice pursued by the Civil Procedure Act, the court is obliged to resume the pleadings and continue the deliberation (see Supreme Court Decision 2010Da20532, Oct. 28, 2010, etc.).

원심판결의 이유에 의하면, 원심은 채택 증거를 종합하여 그 판시와 같은 사실을 인정한 다음, 이 사건 특허발명의 특허청구범위에 기재된 구성요소는 용기의 형상 수치와 압축응력의 수치라 할 수 있는데, 원고가 생산한 글라스락 제품의 경우 용기의 형상 수치는 일부 단순 변경된 것으로 보더라도 특허발명의 청구항 기재 수치 범위의 압축응력층 형성이라는 목적을 달성하지 못하여 실질적으로 동일한 작용효과를 나타낸다고 할 수 없으므로, 원고가 생산한 위 글라스락 제품은 특허받은 발명 내용대로 실시한 것이라고 할 수 없다고 판단하면서, 그 근거로 글라스락 제품의 압축응력치에 관하여 한국유리공업 주식회사에 원고가 의뢰하여 한 측정 결과는 이 사건 특허발명에서 특허청구범위로 제시한 압축응력치인 250 ~ 650kg/㎠ 범위 내였으나, 주식회사 락앤락의 의뢰로 한 측정 결과는 위 특허청구범위에 현저히 미달하는 점과 피고가 원고 스스로 작성한 문서라고 제출한 을 제32호증에 글라스락 제품의 통상 압축응력치가 150 ~ 250kg/㎠라고 기재된 점을 지적하였다.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles and records.

First, according to the reasoning of the judgment below and the records, Eul evidence No. 32 is attached to the defendant's preparatory documents received by the court prior to the third date for pleading of the court below. On January 19, 2011, the evidence submitted as evidence on the above date for pleading. The court below closed the pleadings on the same day and closed the proceedings. The plaintiff alleged that Eul evidence No. 32, from among the documents prepared by the plaintiff, was edited and altered by reference documents submitted on January 28, 201, which was after the closing of pleading, was presented by the court below. The evidence remaining if Eul evidence is excluded from evidence No. 32 in relation to the compression of Libers products, is the result of the compression test conducted at the request of the plaintiff by the Technology Research Institute of Korea, Inc., Ltd. on September 1, 2009.

In light of the above circumstances and as acknowledged by the court below, if the actual compressed response power of the literary products works as a critical factor in determining whether the plaintiff's patented invention was implemented and whether the plaintiff's patented invention was false or exaggerated advertising, the court below should first have determined the credibility of each evidence after carefully examining the grounds and causes that conflict with those of the same purpose between the prosecutor for the same purpose that was implemented by one agency, and then carefully examining the reasons and the causes thereof. If the evidence No. 32 of the said portion serves as a critical factor in determining the credibility of the said evidence, the court below should have determined the credibility of the said part's authenticity after clearly resolving the questions as to whether the authenticity of the said evidence was established, rather than immediately adopting the evidence No. 32 of the said part that raised doubt about the authenticity of the said

Nevertheless, the court below held that the advertisement of this case constitutes a false or exaggerated advertisement under Article 3 (1) 1 of the former Advertisement and Advertising Act by deeming that the advertisement of this case was not a false or exaggerated advertisement, without any specific measures, because it was not verified as to the authenticity of the establishment without any specific measures as mentioned above Eul 32, and without any other reasons, the result unfavorable to the plaintiff at the request of the competition company among the two conflicting inspection results conducted by the Korean glass Industry Technology Research Institute without any specific measures, and eventually, the result was derived from the competition company's request. Accordingly, the court below determined that the advertisement of this case was an advertisement of this case, because it did not achieve the objective of forming a compressive atmosphere within the scope of the values stated in the claims of this case in the patent invention of this case. In so doing, the court below erred by exceeding the scope of discretion given to the fact-finding court as to the selection

2. As to the ground of appeal as to whether it constitutes false or exaggerated advertisements with regard to the indication of “heat strengthened glass”

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and determined that in the case of glass products, the glass products meet the requirements for heat-resistant glass strength according to the Korean Industrial Standards, but do not meet the standards for the most important “heat inflation coefficient” due to heat-resistant glass properties, but rather meets the above quality standards of heat-resistant glass, and thus, it was reasonable to view that the glass products were manufactured with the patented invention called “heat heat-resistant glass” with the characteristics of heat-resistant glass and strengthened glass, thereby misleading or misleading consumers.

However, according to the reasoning of the judgment below and evidence adopted by the court below, there is no provision specifically defined the requirements for heat heat glass or official standards to determine whether the products fall under heat heat glass. Thus, even if the Plaintiff’s groscin products do not meet the quality standards for heat heat glass established in the Korean Industrial Standards, it cannot be readily concluded that the Plaintiff’s groscin products are false or exaggerated advertisements merely because they merely refer to a certain glass product under the ordinary transaction concept, unless there are special circumstances to deem that the products meet the quality standards for heat heat glass stipulated in the Korean Industrial Standards or that ordinary consumers are aware of the same purport.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to false and exaggerated advertisements, which affected the conclusion of the judgment, and the ground of appeal assigning this error is justified.

3. As to the ground of appeal as to whether it constitutes a malicious advertisement

According to the delegation of Article 3(1)4 of the former Act and Article 3(2) of the former Enforcement Decree of the Act on Labeling and Advertising, the so-called “non-permanent advertisements” prohibited by Article 3(4) of the former Enforcement Decree of the Act refers to advertisements that are likely to impair the fair trade order by slandering or divating only some unfavorable facts with respect to the products of other business operators, etc. or other business operators, etc. without any objective basis.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and determined that, in light of the melting specifications of "food standards and specifications" of the Korea Food and Drug Administration and the results of various tests, there is no objective basis to conclude that plastic containers in PC are harmful to the human body due to the melting of lusol A, etc. of plastic containers which are socially controversial at the time, and there is no possibility that consumers would be harmful to the human body, the court below made an advertisement unfavorable to the business operators, such as the company, etc. that manufactures and sells plastic food through an advertisement that contains concerns that plastic food in competition with the above gros products are harmful to the human body.

However, such judgment of the court below is not acceptable.

First of all, the Plaintiff did not assert that “plastic containers located in the PC are harmful to the human body due to melting Switzerland A, etc.” which the lower court pointed out that the Plaintiff did not have objective grounds through the instant advertisement. However, according to the facts acknowledged by the lower court, the Plaintiff attempted to raise consumers’ preference to his or her glass products, which are favorable material, by citing some scholars’ opinions that support the possibility of melting the possibility of melting the eco-mons in plastic containers through the instant advertisement or legislation of foreign countries against their risks. However, in light of the fact that it should be deemed that the Plaintiff’s best efforts to avoid the risk in advance with high level with respect to the safety of food or related products directly related thereto or the harm to the human body belongs to the right of legitimate choice granted to consumers, if there is a concern that certain food or related products directly related thereto have objective grounds for their harmfulness to the human body, and thus, there is no possibility or concern that fair trade order may not be any harm or danger.

However, according to the reasoning of the judgment below and the record, Seoul Broadcasting Co., Ltd., prior to the advertisement in this case, broadcast 2 double documentary documentary programs concentrating and concentrating the harm caused by the environmental classmons detected in plastic products as of September 10, 2006 and on the 17th of the same month. Accordingly, the environmental classmons problem has already been in public interest in society. The Korea Food and Drug Administration has also issued objective information on the environmental classmons, such as the permissible usage level and the publication of various test results in the food standards and specifications. Accordingly, although there is room for controversy over the possibility of using the environmental classmon in plastic containers pointed out by the plaintiff in the advertisement in this case, there is no concern about the harm to human body, it can be seen that there is no concern about the possibility of supporting the advertisement in our society, and therefore, it is not possible to see that there is a concern about other consumers' purchases in this case's advertising products as of the first instance of this case, even if there is no concern about other consumers' purchases in this case's advertising products.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the malicious advertisements, which affected the conclusion of the judgment, and the ground of appeal assigning this error is justified.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)