The case affirming the judgment of the court below that the application for provisional injunction against infringement of trademark rights by the trademark right holder cannot be allowed as an abuse of trademark rights.

Article 2(2) of the Civil Act, Article 7(1)4 of the Trademark Act

[Judgment of the court below]

Debtor Co., Ltd. (Attorney Il-il et al., Counsel for defendant-appellant)

Seoul High Court Order 2003Ra426 dated January 6, 2004

The reappeal shall be dismissed. The costs of reappeal shall be borne by the obligee.

The grounds of reappeal are examined.

1. As to the first ground for reappeal

According to the records, the court below acknowledged the facts and found that the registered trademark of this case (registration No. 543908) composed of " "" has copied the trademark (hereinafter referred to as "debtor's used trademark") used in the products imported and sold from the debtor's representative director while the non-applicant 1 serves as the debtor's trademark, and it is not for the purpose that the application of the registered trademark of this case would have the distinctiveness of the products using the trademark, but for the purpose that the contract would have the exclusive import and sale right of the KGB products to obtain unfair profits through the sale and manufacture of the products using the trademark, or for the purpose that it would have been filed with the unfair competition intent to use the exclusive import and sale right of the products of this case to obtain unfair profits by securing the favorable location in the process of concluding such contract, and it is reasonable for the court below to have determined that the application of the registered trademark of this case constitutes an abuse of the trademark right of this case to the non-applicant 2 to the effect that it does not constitute an abuse of the trademark right of this case for the same or unfair competition order.

2. As to the second and third grounds for reappeal

As seen above, the judgment of the court below that there is no right to be preserved in the application for provisional disposition of this case is justifiable, and the conclusion of the court below that dismissed the application of this case regardless of whether there was error in the judgment of the court below as to the necessity of preservation, unless there is no right to be preserved, is justifiable. Thus, it is not necessary to further determine the grounds for reappeal Nos. 2 and 3 which are erroneous in the judgment of the court below on

3. Therefore, the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)