[1] Criteria for determining the identity of the facts charged

[2] Specific degree of the facts charged

[3] The case where the fact-finding without going through the amendment procedure of indictment does not violate the principle of no accusation

[4] The meaning of "unfair competition act" under Article 2 (1) of the Unfair Competition Prevention Act

[5] In principle, whether the well-knownness of the product mark is succeeded to the new owner of the business if all related businesses were transferred along with the well-known product mark transfer (affirmative)

[1] The identity of the facts charged is maintained if it is identical in basic respect to the social facts that form the basis of the facts.

[2] The purpose of Article 254(4) of the Criminal Procedure Act, which requires the court to specify the facts charged in filing a public prosecution, is to limit the scope of the trial against the court and facilitate the exercise of the defense right by specifying the scope of the defense against the defendant. Thus, it is desirable to clearly specify the facts such as the date, time, place, method, etc. of the crime as far as possible. However, the validity of the public prosecution is not affected if the facts charged can be identified and distinguished from other facts, i.e., the identity of the facts charged, and the degree of specifying the elements of the

[3] In a case where there is no concern about substantial disadvantage to the defendant's exercise of the right of defense, the principle of no accusation is violated even if the court acknowledged different facts from the facts charged without going through the amendment procedure of indictment to the same extent.

[4] An act under Article 2 subparagraph 1 of the Unfair Competition Prevention Act does not necessarily require the use of a trade name identical or similar to a registered trademark, in contrast to the infringement of trademark rights, and refers to an act which causes confusion with another person's goods by using a name, trade name, trademark, container or package of goods, or any other mark identical or similar to a mark indicating another person's goods, which is actually widely known in Korea, regardless of whether it is registered, or by selling goods using such a mark, or causing confusion with another person's business facilities

[5] In a case where the character of the goods owner is changed, such as transfer of business, it is not required that the well-knownness of the goods mark, in principle, be succeeded to the new business owner in case where all related businesses are transferred together with the well-known goods mark, and that it is not required that the goods of the goods of the goods owner are indicated by the others, but that the specific person is clearly known even if it is known.

[1] Article 298 of the Criminal Procedure Act / [2] Article 254 of the Criminal Procedure Act / [3] Article 298 of the Criminal Procedure Act / [4] Article 2 subparagraph 1 and Article 18 (1) 1 of the Unfair Competition Prevention Act / [5] Article 2 subparagraph 1 and Article 18 (1) 1 of the Unfair Competition Prevention

[1] Supreme Court Decision 85Do54 delivered on July 8, 1986 (Gong1986, 1017), Supreme Court Decision 93Do2950 delivered on March 8, 1994 (Gong1994Sang, 1224), Supreme Court Decision 93Do680 delivered on September 23, 1994 (Gong1994Ha, 2901) / [2] Supreme Court Decision 91Do2085 delivered on October 25, 1991 (Gong1991, 2878 delivered on December 24, 198), Supreme Court Decision 91Do2495 delivered on December 24, 198 (Gong1992, 7229) (Gong9498 delivered on April 24, 1992), Supreme Court Decision 92Do94979 delivered on April 29, 192)

Defendant

Defendant

Attorney Prospected Sea

Incheon District Court Decision 94No811 delivered on December 21, 1995

The appeal is dismissed.

We examine the grounds of appeal.

1. On the first ground for appeal

A. The identity of the facts charged is that the same social factual relations, which form the basis of the facts, are maintained in basic respect (see, e.g., Supreme Court Decision 93Do680, Sept. 23, 1994).

According to the records, the original facts charged by the prosecutor as to the violation of the Unfair Competition Prevention Act are merely an investment of enormous advertising expenses for Nonindicted Co., Ltd., Ltd., and its telegraph, from June 1, 1989 to the central daily newspaper, etc., and the consumers widely recognize the fact that the defendant's use of the same trade name and auxiliary goods is identical to those of others, and thus, the defendant's use of the same trade name and operation as the chain is intended. From April 2, 1993 to March 1, 1994, the defendant widely known that the defendant's use of the above products is identical to those of others' products, and then, the defendant's use of the above products is identical to those of others' products, such as plastic paper, plastic paper, advertising plastic paper, etc., which are identical to those of others' products, and then, the defendant's use of the above products as the main body of the company's use of the products is changed to 9 days.

In the same purport, the court below's decision that allowed the prosecutor's application for modification of indictment on the ground that the above two charges are identical, is just, and there is no error in the misapprehension of legal principles as to the identity of the facts charged or modification of indictment.

B. In addition, the revised facts charged are limited to "a mark indicating that it is one's product that is widely known to consumers in the Republic of Korea through various advertising media" as to the so-called well-known sign of the above corporation, and the purport of Article 254 (4) of the Criminal Procedure Act, which requires the court to limit the object of trial and facilitate the exercise of defense by specifying the scope of defense of the defendant. Thus, it is desirable to clearly specify the facts, such as the date, time, place, method, etc. of the crime, to the extent that it can be distinguished from the facts charged, i.e., the identity of the facts charged, and the degree of knowing the constituent elements of the crime, etc., the effect of prosecution should not be affected if it is stated in the revised facts that are similar to the above facts charged (see Supreme Court Decisions 92Do1532, Sept. 14, 1992; 200Do15324, Dec. 24, 191).

In the same purport, the court below's decision that permitted the prosecutor's application for modification of the indictment as the object of the trial is just, and there is no error of law that did not make any trial for the specification of the facts charged, such as the theory of lawsuit.

All arguments are without merit.

2. On the second ground for appeal

In a case where there is no concern about actual disadvantage to the defendant's exercise of his right to defense, even if the court differently acknowledged the facts in the indictment without going through the amendment procedure to the indictment to the extent identical to the facts charged (see Supreme Court Decision 94Do1888 delivered on December 9, 194, etc.).

The court below acknowledged the defendant's criminal facts, unlike the changed facts charged prior to the above changed facts, specified as the annexed Table 1 in the judgment of the court below, and unlike the changed facts charged with the above changed facts that the non-indicted scambling and the above corporation established by the non-indicted scambling and scambling with the enormous advertising expenses through the central daily newspaper, etc., the above scambling and the above corporation scambling can be widely recognized that consumers are widely aware of the above scamcambling, and unlike the changed facts charged with the above changed facts that the victim caused the confusion of the product subject is recognized as the above corporation scambling and its stocks as the product distribution theory, but it cannot be viewed that the court below added any new facts that there was no change in the facts charged, and it is nothing more than that of the product owner's specific method of legal confusion with the product owner.

Therefore, even if the court below acknowledged facts different from the facts charged without going through the amendment procedure of indictment, it does not go beyond the scope of the identity of the facts charged, but does not put any substantial disadvantage to the defendant's right of defense. Therefore, the court below did not err by misapprehending the legal principles on the subject of the principle of non-defluence or the trial.

3. On the third ground for appeal

In the judgment on the grounds of appeal, the court below affirmed the judgment of the court of first instance on June 13, 1989 that, in order to promote and propagate the Republic of Korea on the Manyang Klyang Klyang and to expand the chain business in the border area, the non-indicted 1 established the becas industry (the changed trade name on March 30, 1993, and the trade name at the time of the establishment of the company) together with the non-indicted 1, Scascas industry (the food company if the company was changed on March 30, 1993). The above becascas industry approved the comprehensive use of the trademark and service mark on the becascasia as to the above becasia industry, and thereafter, the above becas industry established in each region with its independent branch office on June 13, 1989, and had the consumers use the above trademark and service mark, etc. on the ground that it was widely admitted as the result of the public relations of the central becasting industry.

However, according to the records, the facts acknowledged by the court below in the judgment on the grounds of appeal are the fact that the above leapling and the above leapling corporation established by the above leapling industry through the advertisement activities of the above leapling industry and the expansion of chain business have acquired the well-knownness of the product mark of the above leapling corporation, which was established by the above leapling and the above leapling corporation (in this part, the "leaping and the above leaping corporation accepted the comprehensive use of the trademark, service mark, etc. as to the above leapling industry with respect to the above leapling industry", and therefore, there is no room to deem that there was a fact-finding that there was "the well-knownness of the product mark of the leapling chickens was succeeded to the above leapling industry", and further, it is nothing more than the fact-finding that the above leapling industry independently established after

Therefore, it is obvious that the facts acknowledged by the court below in its part and the facts that the above leapmeter and the above leapmeter Co., Ltd., which were reversed the judgment of the court of first instance and recognized in the criminal facts of the judgment, acquired the well-knownness of the product mark as to the Macyang Kchenchenchencchen by advertising the

Therefore, there is no error of law in the court below's failure of reason or inconsistent reasoning, and there is no reason to discuss this part of this part.

4. On the fourth ground for appeal

In light of the records, the court below's finding that the above leaps and the above leaps, from June 1, 1989, caused the above leapscam industry to advertise the enormous advertising expenses through the central daily newspapers, etc. is just, and there is no violation of the rules of evidence that the consumers widely recognize the leapscambling, and there is no violation of the rules of evidence to recognize facts without any evidence. The argument is without merit.

5. On the fifth ground for appeal

A. The act stipulated in Article 2 subparagraph 1 of the Unfair Competition Prevention Act does not necessarily require the use of a trade name identical or similar to a registered trademark because it differs from the infringement of trademark rights, and means an act that causes confusion with another person's goods by using a name, trade name, trademark, container or package of goods, or any other mark identical or similar to a mark indicating another person's goods, which is actually widely known in Korea, regardless of whether it is registered, or by selling goods using such a mark, or causing confusion with another person's business facilities or activities (see Supreme Court Decision 95Do1464 delivered on January 26, 196, etc.).

Based on the facts acknowledged based on such macro-Evidence, the court below recognized the facts introduced in the Republic of Korea as one of the three methods in the old-style Meetian Meetian in 1977. However, there is no ground to regard it as widely known to consumers or traders, and otherwise, it cannot be deemed that ordinary consumers have recognized or recognized it as a common name of "Malom Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem me can not be viewed as a common name, and even if it is merely a common name, it can not be viewed as an abuse of distinctiveness or use.

In addition, according to the records, the non-indicted jun't operate a chain store in which the leap line sells the leap line prepared by a method different from the above leap line from the above leap line from around 1986, and the leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's leap line's lele line's lelele line's s line'''s lele line'''''''''s 's '.'

B. Meanwhile, in cases where the character of the product owner is changed, such as transfer of business, the well-knownness of the product mark, in principle, shall be succeeded to the new business owner in cases where all the related business marks are transferred together with the well-known product mark, and in order to say it as a well-known mark, it does not require that the specific person is clearly known even though it is known that the other party's goods are indicated. According to the facts recognized as lawful and the facts recognized by the court below, the above leap line was established on November 14, 1989, and the above leap line was transferred all of the rights to the product mark of the leap line, which was about the leap line, and on December 13, 1993, all of the rights to the product mark of the leap line, which was about 3,500,000,000,000,000,0000,000,000,000,000.

In the same purport, the judgment of the court below is just in holding that it is a person who has acquired the knowledge of the product marking of Machen Kanyang Kanyang and that the victim caused by the crime of this case is a company engaged in distribution of Machen Kan, which acquired the above stocks, and it is not erroneous in the misapprehension of legal principles or in the misapprehension of legal principles.

All arguments are without merit.

6. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)