2013 Gohap 32048 Claims for Damages

As shown in the separate list of Plaintiffs.

Plaintiff 25, et al., Counsel for the plaintiff-appellant-appellant

Attorney Park Jong-young, Lee Jong-young, Lee Jae-young, Counsel for the plaintiff-appellant

KS Communications Corporation

Seoul Western-ro Uniform 87 (Influoral and Mag Building Newly Inserted by Act No. 877

For the Representative Director:

Law Firm Subdivision, Counsel for the plaintiff-appellant

Attorney Lee Jin-won

May 22, 2014

July 24, 2014

1. The plaintiff A's lawsuit shall be dismissed.

2. All of the plaintiffs' claims except the plaintiff A are dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff A and the defendant is borne by the Multilateral Law Firm of the plaintiff, while the remainder between the plaintiffs except the plaintiff A and the defendant are borne by the remaining plaintiffs, respectively.

The defendant's approval of the plaintiffs for search advertising services sold by the defendant on the portal site "NE"

No person shall use the plaintiffs' name or sell the keyboard using the plaintiffs' names.

The defendant shall serve each of the plaintiffs 10,000,000 won and a copy of the complaint of this case to the plaintiffs from the next day.

C. It shall pay 20% interest per annum from the date of full payment.

1. Basic facts

A. The plaintiffs are entrepreneurs who are engaged in activities such as virtual numbers, actors, etc., and the defendant is a company that operates a "Nt (www. rate.com)", which is an Internet search portal site.

B. When the Defendant inputs a specific key on the Netroph website search site, the Defendant, in advance, has the advertiser’s website address and advertising phrase that purchased the key key service from the Defendant, display it on the top of the screen as a result of the search, and if the person’s address or advertising phrase is charactered, then the Defendant’s key search advertising service that enables the users to connect it to the site (hereinafter referred to as “key search advertising”).

(2) provide the information to the public.

C. The defendant shows the screen that shows the results of the search on the Netro website "," "Span social link "," "Span social link "," "Spans slick link " excluding the others" provide a flick search advertisement directly, and "Slick link "" shows the same results of search as the result of the following communication search of the following communication corporation, in collaboration with the next group. In this case, as a result of the advertisement of the advertiser who paid a high amount of money to a specific key, a notice is posted on the upper part of the screen.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 5, 13, 18, 22, and the purport of the whole pleadings

2. Determination on this safety defense

Since the defendant merely received a package delegation from the management company to which the plaintiffs belong, and filed the lawsuit of this case without obtaining delegation of the plaintiffs' power of attorney, the lawsuit of this case is unlawful as it was filed by a person who has no power of attorney. The existence of the attorney's power of attorney is an ex officio investigation by the court. In the case where the power of attorney of this case is a private document, the issue of whether the court shall issue a certification order with respect to the certification of the power of attorney belongs to the court's discretion, or in the case where there is no obvious evidence to prove that the power of attorney is authentic, the court should investigate whether the certification order with respect to the certification of the power of attorney or otherwise delegate the power of attorney (Supreme Court Decision 2008Do2588, Feb. 2, 1978).

14. See, e.g., Supreme Court Decision 77Da2139.

Therefore, in a case where a person who filed a lawsuit or an appeal as an attorney fails to prove his/her power of representation in spite of an order for authentication by the court, the court may dismiss such lawsuit or appeal on the ground that it is unlawful to have been filed by a person who has no power of attorney, and at this time, the litigation cost shall be borne by such attorney (Articles 99 and 98(2) of the Civil Procedure Act). The same applies in a case where such attorney expressed his/her intention of resignation to the court (see Supreme Court Order 97Ma1574, Sept. 22, 1997, etc.).

In full view of the data and the purport of the entire pleadings submitted by the plaintiffs, all of the others except the plaintiff A are acknowledged to have delegated this case to the law firm Multilater. However, in the case of the plaintiff A, the defendant is disputing the right of attorney of Multilateral Law Firm which instituted the lawsuit of this case on behalf of the plaintiff plaintiff A, and there is no evidence to acknowledge that multilateral Law Firm was duly entrusted by the above plaintiff. In addition, since multilateral Law Firm appointed after the resignation of Multilateral Law Firm did not submit the plaintiff A's letter of attorney, the plaintiff's lawsuit against the defendant was filed by the plaintiff without the right of attorney, and thus, it is unlawful. The defendant's defense is justified within the above scope

3. The parties' assertion

A. Claim by the plaintiffs except the plaintiff A) for tort under the Civil Act

The defendant actively promoted to register the KIKO search advertisement with the advertiser in order to obtain the benefit of the KIKO search advertisement. Accordingly, the defendant, together with the advertiser, has infringed the plaintiffs' right of publicity by using the names or examples of the rest of the plaintiffs except the plaintiff A (hereinafter referred to as "the plaintiffs") commercially, or has aided and abetted the advertiser's tort.

Preliminaryly, even if the right of publicity is not acknowledged, an advertiser infringes the plaintiffs' right to name by commercially using the plaintiffs' names, and the defendant conspiredd to infringe the advertiser's right to name through the KIKO search advertisement, or aided and abetting the advertiser's infringement. Therefore, the defendant is liable for mental damage suffered by the plaintiffs.

Therefore, the defendant is not obliged to use the plaintiffs' name or sell the keyboard search advertising advertisement without permission of the plaintiffs, and the defendant is obligated to pay KRW 10 million among the damages suffered by the plaintiffs pursuant to Articles 750, 751, and 760 of the Civil Code. 2) Claim for violation of the Unfair Competition Prevention and Trade Secret Protection Act

The Defendant, without permission, uses the names and portraits built by the Plaintiffs through considerable efforts and investments for the Defendant’s business against business ethics or fair competition order, thereby gaining unjust profits by taking advantage of the Plaintiffs’ efforts and investments and infringing the right to use the Plaintiffs’ names, etc. commercially. Accordingly, this constitutes an unfair competition act under Article 2 subparag. 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

Therefore, the defendant is not obliged to use the plaintiffs' names or sell the keyboard search advertisement without the plaintiffs' permission, and the defendant is obligated to pay 10 million won out of the damages suffered by the plaintiffs.

B. Defendant’s assertion

The key search advertisement is an information search algorithm the same as the Internet search, and the defendant sells the screen advertising area as a result of the search, and what kind of products are to be advertised by the advertisers. In other words, the key search advertisement including the name of the defendants is merely voluntarily selected by the advertisers, but does not encourage or distort the key search advertisement including the plaintiffs' names to gain the defendant's profit. Therefore, the defendant cannot prevent the registration of the keyboard including the plaintiffs' names from being registered, and cannot be held liable for joint tort or aiding and abetting to the defendant.

In addition, the right of publicity cannot be acknowledged unless there is any express provision, and it cannot be deemed that the right of publicity or the right of personality has been infringed through the key search advertisement. The plaintiffs use large amount of sponsored goods after receiving a large amount of sponsored goods, and thus they allow impliedly the use of their right of name. In addition, the key search advertisement is within the limit of admission of the plaintiffs, who are public figures, and it can be justified in accordance with the fair use doctrine (Noriririririririririririririririrs). Furthermore, Article 2(1)(j) of the Unfair Competition Prevention Act enters into force from January 31, 2014, and it does not constitute a violation of the Unfair Competition Prevention Act because there is no proof that the defendant infringed the rights

In addition, in the case of KIKO search advertising, the defendant has been transmitted the search result from the next communication corporation (hereinafter "the next communication corporation"), so the defendant is not responsible for this part.

4. Determination

A. Judgment on the claim based on a tort under the Civil Act

1) Judgment on the main argument

This paper examines whether the right of publicity, which is the exclusive and exclusive control of the property value of name, portrait, signature, etc. under our law, can be recognized. In a case where the name or portrait, etc. of a well-known person, such as a worship, social evaluation, dys, and sports player, is attached to a product or used for a service business, the promotion of the sale of the product or the business activities of the service business is effective. Since the name, portrait, etc. of such well-known person is treated as an economic benefit or value, and the customer attraction personnel with such name, portrait, etc. are treated as a commercial transaction. Therefore, it is difficult to explain or protect such right solely on the basis of the legal principles on personal rights or existing copyright, unfair competition prevention and trade secret protection laws, such as name rights, portrait, etc. exclusively used for personal life, portrait, etc., such as the right of portrait, etc.

Therefore, one of the federal appellate courts of the United States recognizes the right to exclusively control the above property value as an independent property right in 1953, and since the protection of the right of publicity, many states of the United States and many scholars have been supported by the right of publicity, there is controversy that the right of publicity is not a property right but a personality right, so inheritance and transfer is possible. The right holder of the right of publicity or a person who succeeds to or acquires the right can seek not only compensation for damages but also prohibition of infringement against the infringer.

In Korea, since the rapid development of entertainment, sports industry, and advertising industry has led to the use of the name, portrait, etc. of a well-known person in advertising, there are many disputes arising therefrom, it is sufficiently acceptable to recognize the new concept of right of publicity as seen earlier in order to regulate it.

However, Article 185 of the Civil Act provides that "No real right may be created at will other than that provided for by law or customary law." The so-called "real right legal principle is declared by stipulating that "the compulsory provisions of the Real Rights Act are important." As such, it is not allowed to create a new kind of real right that is not recognized by law (see Supreme Court Decision 2001Da64165, Feb. 26, 2002, etc.). However, the right of publicity as a property right is not based on the sexual law and customary law.

Therefore, it is difficult to recognize the right of publicity, which is an exclusive property right similar to a real right, solely on the basis that there is a need to do so without any legal basis such as law, treaty, etc., and only if a legal basis exists for specifically stipulating the requirements for establishing the right of publicity, transfer and inheritance, object and duration of protection, remedies for infringement, etc., the right of publicity can be acknowledged as claimed by the plaintiffs.

Therefore, this part of the plaintiffs' assertion that is premised on the right of publicity is without merit.

2) Whether the determination of the conjunctive assertion is based on the recognition and limitation of personal rights

Article 10 of the Constitution provides, “All citizens shall have dignity and value as human beings and have the right to pursue happiness. The State shall have the duty to confirm and guarantee the fundamental human rights of individuals.” The essence of human beings, which can be said to be the ultimate purpose (basic ideology) of guaranteeing all fundamental rights by prescribing as “the fundamental human rights,” and guarantees an individual’s personal rights and the right to pursue happiness (see Constitutional Court en banc Decision 89Hun-Ma82, Sept. 10, 190). Generally, the term “personal rights” means the right to enjoy personal benefits, i.e., life, body, health, reputation, peace, portrait, portrait, portrait, and freedom of privacy, which cannot be separated from the subject of rights. In addition, since a person’s name, portrait, etc. is a personal symbol, the State has the right not to be used without permission, such as the name, portrait, etc. derived from the individual’s personal rights.

The fundamental rights under the Constitution are primarily a defensive right to protect an individual’s free sphere from a violation of public power, on the other hand, embodying the objective value order, which is the basic decision of the Constitution, and affect all legal areas including private law, and thus legal relations between private persons should also be governed in compliance with the provisions on fundamental rights under the Constitution: Provided, That the fundamental rights provisions form the contents of Articles 2, 103, 750, and 751 of the Civil Act, which provide for the general principles of private law, and form the basis for interpretation thereof, and indirectly affect the private law relations (see Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010).

Therefore, the right of personality under the Constitution is also guaranteed through the general provisions of the Civil Act. Therefore, if a person uses his/her name without his/her consent and it can be deemed that his/her personal legal interests were unlawfully infringed, the person can claim compensation for mental suffering against the person who infringes his/her personal legal interests.

However, the general theory on personal legal interests should be somewhat modified in cases where the subject of personal legal interests is actors, family members, professional sports players, etc. (hereinafter “celebrators, etc.”). Since a person who selects an artist, etc. comprehensively permitted the disclosure of his/her name and portrait in front of the public due to the characteristics of his/her occupation, the scope of protection of such personal interests is limited compared to the general public. Therefore, in order to claim damages for the reason that an artist, etc. suffered emotional distress by using his/her name and portrait without authority, the scope of protection of such personal interests should be limited compared to the general public. Therefore, there should be special circumstances where the said use is damaged or reduced, or his/her name and portrait are used for the promotion of goods, etc.

B) Whether the plaintiffs' right to name was infringed upon due to the key search advertisement

We examine whether the plaintiffs' right to name has been infringed by using the phrase that combines the plaintiffs' names, product names, etc. through the defendant's key search advertisement.

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 3, 5, 22, and Eul evidence Nos. 1 through 4, and 8 through 13, the defendant did not recommend or separately sell the keyboard including the name of an artist, etc. in the KIKO search advertisement to the advertiser, but the advertiser decided to voluntarily register it with the defendant after considering the advertisement products, contents of the advertisement, advertisement method, etc. The defendant is not the key contents, but rather the key contents, but the price is set differently according to the items and location of the screen. In the case of the search advertisement containing the keyboard included by the plaintiffs, it is recognized that the plaintiffs are subject to the search of the goods that the plaintiffs actually advertised or agreed upon.

In addition, ① People want to be aware of information, such as clothes, shoess, shoess, or what is the goods worn by the same artist as the plaintiffs, and where where they can live, etc., (e.g., example: ○○○○○, △△△) inputs an artist’s name and the name of the goods at the search site of the Internet portal site, and advertiser uses a key, which combines the plaintiffs’ name and the name of goods in a combined manner with the plaintiffs’ performance or characteristics for referring clothes, shoes, shoess, or those of such one’s goods, which the plaintiffs wear, and then combines the plaintiffs’ name and the quality of the goods. ② The plaintiffs’ names and clothes worn by the plaintiffs were frequently searched on the Internet portal sites, and thus, they cannot be seen as widely known to the public or widely known to the public in the form of advertisements without any need or social recognition of the plaintiffs.

B. Determination on the claim based on the violation of the Unfair Competition Prevention Act

The defendant's key search advertisement constitutes an unfair competition act under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act.

1) Relevant provisions

The purpose of the Unfair Competition Prevention Act is to maintain sound trade order by preventing unfair competition such as the unlawful use of domestically well-known trademarks, trade names, etc. (trade names), and by preventing infringement on other persons’ trade secrets (Article 1). Article 2 Subparag. 1(j) of the Unfair Competition Prevention Act provides that “The act of infringing other persons’ economic interests by using the outcomes, etc. achieved by considerable investment or effort from other persons for their own business without permission in a manner contrary to fair commercial practices or competition order shall be deemed as one type of the unfair competition act. 2)

In full view of the aforementioned facts’ purport of the entire pleadings, the following circumstances:

① In other words, it is difficult to recognize the key search advertisement as a method against fair commercial practices or competition order under Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act in the form of a business method widely used on the Internet search portal site. ② The key of the key search advertisement is chosen by itself by the shopping mall operator, and the defendant does not actively provide the key containing the plaintiffs’ sexual name. ③ It is difficult to recognize that the defendant is not obliged to prohibit the registration of all keys containing the plaintiffs’ names, or that it is difficult to recognize that the defendant has the obligation of preemptively prohibiting the registration of keys containing the plaintiffs’ names in other products than the products directly advertised by the plaintiffs. ④ In addition to the plaintiffs’ efforts and investment, the plaintiffs’ names contribute to the Internet search portal site other than the plaintiffs’ efforts to obtain customer attraction manpower, and the plaintiffs' actual and effective purchase of the advertising products through the key search advertisement is not detrimental to the plaintiffs’ fair trade order or sound economic interests.

Therefore, this part of the plaintiffs' assertion is without reason to examine further.

5. Conclusion

Therefore, the plaintiff A's claim is illegal, and it is dismissed, and all of the plaintiffs' claims except the plaintiff A are without merit. It is so decided as per Disposition.

Judge Lee Jong-chul

Judges Nong-ju

Judges Lee E-young

* List of the Plaintiffs is omitted.