[1] The meaning of "trade name that may be mistaken for another person's business" under Article 23 (1) of the Commercial Code

[2] The case holding that the "Joint Industrial Company" and "Joint Economic Company" are not similar to those of others

[3] The case holding that the use of the trade name of "Joint Ak-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

[4] The meaning of "trade name widely known in Korea" under the Unfair Competition Prevention Act

[1] Article 23 (1) of the Commercial Code provides that no person shall use a trade name that may be mistaken for the business of another person for an improper purpose. In this case, trade name that may be mistaken for the business of another person is not limited to trade name used for the same kind of business as that of that other person, but where a trade name is closely related to each other in terms of the nature, content, method, customer floor, etc. of the business, and where ordinary consumers believe that both business entities are related to one another, or where they acquire absolute trust due to the reputation of the company from ordinary consumers because their trade name is considerably widely known, it is likely that general consumers might mistake or confuse the business entity regardless of the type of business.

[2] The case holding that the name, appearance, and concept are not similar to those of ordinary consumers, and thus there is no possibility of misconception or confusion about the business entity, as they are not similar in the overall and objective observation of the name, appearance, and concept

[3] The case holding that in case where Gap, who had been engaged in the automobile maintenance business with the registered trade name of "Joint Industrial Complex", registers the trade name of "Joint Motor Vehicle Track" in addition to "Joint Motor Vehicle Hack" and registered the trade name of "Joint Motor Vehicle Hackkkkkkkkkkkk" in the same city as Eul, the automobile maintenance business and the automobile dog business are used without using the registered trade name, because the type of business are different, the nature and contents of the business are different, and it is relatively less related to the quality of service, the towing place can be designated by the vehicle owner, the meaning of "Joint Motor Vehicle Hack" is widely used, and its distinctive character is not significant, the trust between Gap and Eul, Eul and Eul along with the automobile maintenance business, and Eul did separate towing business while carrying on the automobile dog business, and even if Eul did not carry on the automobile maintenance business, it cannot be said that "the same part of the Commercial Act is "the same for the purpose of joint use" as "the two of the Commercial Act".

[4] A trademark or trade name widely known in the Republic of Korea under the Unfair Competition Prevention Act does not require that the trademark or trade name is widely known to all people in the Republic of Korea, but is sufficient to the extent known among traders or consumers within a certain domestic area.

[1] Article 23 (1) of the Commercial Code / [2] Article 23 (1) of the Commercial Code / [3] Article 23 (1) of the Commercial Code / [4] Article 2 (1) of the Unfair Competition Prevention

[1] [2] Supreme Court Decision 94Da31365 delivered on September 29, 1995 (Gong195Ha, 3591) / [3] Supreme Court Decision 94Do399 delivered on July 14, 1995 (Gong195Ha, 2848)

1. A person who is a party to a contract;

Maximum date;

Daejeon High Court Decision 95Na4948 delivered on April 25, 1996

The appeal shall be dismissed. The costs of appeal shall be assessed against the applicant.

We examine the grounds of appeal.

1. Facts acknowledged by the lower court and the evidence admitted by the lower court

A. From April 1, 1968, the applicant started to operate the automobile maintenance plant with the trade name of 'Joint Industrial Complex' in Geumju-dong, from around 1, 1968, and started to operate the automobile towing business with the permission of the Automobile Management Business (Class 1 Automobile Maintenance Business) on February 9, 197. The applicant purchased one stacker on September 1, 1989 and one stacker on December 1, 1991 and started to operate the towing business at the same time with the trade name of 'Joint Motor Vehicle Special Motor Vehicle'.

B. The non-applicant No. 1 lent the name of the non-applicant No. 2 and completed the registration of the automobile transport business on January 7, 1991 and completed the registration of the special automobile transport business on January 14, 191 with the approval of the special automobile transport clause on January 14, 191, and operated the automobile dog with the name of "Jer 2" as "Jer 2" from the Chungcheong city. The non-applicant No. 1 was towing the towed vehicle to the joint industrial company of the applicant mainly without any particular problem with the applicant by towing the towed vehicle to the joint industrial company of the applicant. However, on January 1, 1994, the non-applicant No. 1 started to open the alternative industrial company, and the non-applicant No. 1 was towing to the Daesung Industrial Complex mainly on the grounds of their friendship with the applicant.

C. Accordingly, the applicant filed a complaint against the non-applicant No. 2 as a violation of the Unfair Competition Prevention Act. Although the violation of the Unfair Competition Prevention Act was dealt with without suspicion, the non-applicant No. 2 and the non-applicant No. 1 were indicted on June 25, 1994, which revealed that the non-applicant No. 2 lent the registered name to the non-applicant No. 1, and the non-applicant No. 1 were in violation of the Automobile Transport Business Act, and the non-applicant No. 2 and the non-applicant No. 1 were also indicted on August 22 of the same year on the ground of the violation

D. On September 4, 1994, the respondent transferred two vehicles of the business (i.e., trade name and place of business and facilities) the registration of which was revoked by Nonparty 1 and Nonparty 2, and two vehicles of the racers whose registration was revoked, and continued to engage in the racing business with the trade name of 'Hack-dong Hack-dong Hack-si' after obtaining the registration of automobile transportation business and the authorization of the special motor vehicle transportation clause, and on the surface and telephone number of the office signboards and rac vehicles, the respondent described the rac

2. As to the mistake of facts in the grounds of appeal Nos. 1, 3, and 4

A. The court below recognized that the respondent was transferred from the non-applicant No. 2 to the Respondent's business, and the gist of the grounds of appeal is that the Respondent was not assigned from the non-applicant No. 2 to the above vehicle towing business, but the new towing business was commenced.

B. As seen earlier, according to the evidence duly admitted by the court below, the respondent was found to have continued to conduct the vehicle check business after having been actually transferred the business from the non-applicant No. 2 and the non-applicant No. 1. However, it is obvious that the court below erred in holding that only the non-applicant No. 2 transferred the business, but this error does not affect the conclusion of the judgment of this case. Accordingly, there is no reason to discuss.

3. As to the grounds of appeal Nos. 2 and 5

A. The court below held that while the type of business indicated by the applicant's trade name, the applicant's trade name and the respondent's trade name, the former automobile maintenance business is the former, the latter is the automobile dog business, and the type of business is different, the latter is the same as the two trade name, it is not likely to mislead the applicant as a whole.

B. Article 23(1) of the Commercial Act provides that no person shall use a trade name that may be mistaken for the business of another person for an improper purpose. In this case, trade name that may be mistaken for the business of another person is not limited to trade name used for the same kind of business as that of the other person, but where the trade name that may be mistaken for the business of another person is closely related to each other in terms of the nature, content, business method, customer floor, etc. of the business, and where ordinary consumers believe that both business entities are related to one another, or where they acquire absolute trust due to the reputation of the company, regardless of the type of business, it may cause confusion or confusion with ordinary consumers.

The business related to each of the trade in this case, automobile dog business, and automobile maintenance business are closely related to each of the trade in this case, and many of the automobile maintenance business operators are engaged in towing business, and the general public also tend to think of such a trend. Therefore, the trade name of the applicant's "Joint Industrial Company" and the "Joint Economic Company" actually used by the respondent is the same as the "Joint Partnership" of the applicant's "Joint Partnership", so it is difficult to see that once it is likely to mislead or confuse the business entity.

Therefore, the court below's decision that the business whose trade name is expressed simply in quantity is not likely to be mistaken or confused, is erroneous, but it is not likely that the name, appearance, and concept are not similar to each other when general consumers observe the name, appearance, and concept in a whole or in an objective manner, so there is no concern of misconception or confusion about the business entity.

C. According to the above facts and records, automobile maintenance business and automobile towing business are different in the type of business, their nature and contents are relatively different, and they are less related to the quality of service, the towing place (the towing place is the main maintenance place) can be designated by vehicle owner when towing an automobile, the term "joint operation" in the transportation-related industry is widely used, and its distinctive nature is not so big, and they are currently widely used, trust between the applicant and the respondent, trust between the applicant and the respondent, and the applicant also registered a separate towing service, taking into account the fact that the respondent does not engage in maintenance business, the respondent does not have a separate towing business, and the business method and the period of the respondent's business, the above trade name cannot be deemed to have been used for the above trade name as "an unlawful purpose" registered by the respondent, and there is no evidence to acknowledge that there is no other error in the misapprehension of legal principles or the judgment of the court below in the misapprehension of legal principles as alleged in the ground for appeal.

D. Meanwhile, unlike the registered trade name, the respondent's assertion that it was unlawful for the respondent to use the Respondent as "Joint Lesa," which is different from the registered trade name, that the court below did not make any determination. However, even if considering the above reasons as seen earlier, it cannot be deemed that there was an unlawful purpose in the use of the Respondent's trade name. Thus, the above error cannot be accepted as long as it could not affect the conclusion of the judgment.

E. If so, it is clear that the lower court’s measure that the applicant did not vindicate the right to be preserved in the instant application is justifiable as a result, and the mistake above cannot affect the conclusion of the instant judgment. All of the arguments are without merit.

4. As to the misunderstanding of legal principles as to the improper purpose of the 3rd ground for appeal

According to the facts and records acknowledged earlier, since the trade name of "Haak-dong," or "Haak-dong," which was used by the above applicant and non-applicant 2 prior to the applicant's trade name, and the respondent actually acquired the business and trade name of the above "Haak-dong," the court below is just in holding that the trade name that began to be used first as above and the respondent who succeeded to it cannot be deemed to be the use of a trade name for an unlawful purpose, and there is no reason to issue any error in the misapprehension of legal principles as to the wrongful purpose.

5. As to the ground of appeal No. 4

In the Unfair Competition Prevention Act, the trademark or trade name widely known in the Republic of Korea is not required to be known to all the persons discharged from the Republic of Korea, and it is appropriate to the extent known among the traders or consumers within a certain domestic area (see Supreme Court Decision 94Do399, Jul. 14, 1995). However, upon examining the reasoning of the judgment below in the records, the court below is just in holding that there is no evidence to acknowledge that the above trade name was widely known among the consumers in Chungcheong City, and that there is no other evidence to support that the applicant's trade name was widely known, and there is no other reason to believe that there is no error in the misapprehension of legal principles or the violation of the Supreme Court precedents, which might affect the conclusion of the judgment.

6. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)