2014Na2006129 Compensation (as the case may be)

1. to 56.

Plaintiffs ○○, Attorneys OOO, and OO

1. A stock company;

○○○○

2. A business platform company;

○○○○

Defendants Law Firm ○, Attorneys ○○-○, et al.

Suwon District Court Decision 2013Gahap201390 Decided January 22, 2014

December 24, 2014

January 30, 2015

1. All appeals filed by the plaintiffs are dismissed.

2. All of the plaintiffs' claims added in the trial are dismissed.

3. The appeal cost (including the cost incurred by addition of the claim) shall be borne by the Plaintiffs.

1. Purport of claim

A. The defendants served each of the plaintiffs 20 million won and a copy of the complaint of this case against each of the plaintiffs

The payment shall be made at the rate of 20% per annum from the day following day to the day of full payment.

B. The Defendants: “Search advertising and knowledge and shopping store occupants sold on the A’ portal site.”

The plaintiffs' names or keyboards using the plaintiffs' names without the plaintiffs' permission;

shall not be sold.

[The plaintiffs added the claim as stated in the above Paragraph (b) at the trial.]

2. Purport of appeal

Of the judgment of the court of first instance, cancellation of the part against the plaintiffs falling under the following order of payment.

(c)

The defendants are served on each of the plaintiffs 5 million won and a copy of the complaint of this case.

It shall pay 20% interest per annum from the day of full payment to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by taking into account each entry in Gap evidence 1 through 4 and 13 (including each number), and the whole purport of oral arguments:

[1]

The Plaintiffs are entrepreneurs who are engaged in activities under the name of the principal name or in the name of the principal name and in the name of the party concerned, as well as in the name of the vessel.

○ Defendant A Co., Ltd. (hereinafter referred to as “Defendant A”) is a company operating A (www. A.com) on the Internet search portal site.

○○ Defendant A business platform Co., Ltd. (hereinafter referred to as “Defendant A business platform”) is a company that Defendant A established on May 1, 2009 by dividing the online advertising and marketing platforms, IT infrastructure sector, etc.

[2]

○ On the screen showing the search results of the A website operated by the Defendants, if Internet portal users enter a specific keyboard in the search windows, the address and advertising phrase of the advertiser who entered into a contract with the Defendants are posted prior to other search results (the result of the advertiser’s search is “the link appears in the column,” and the result of the business site search is located next to the link).

○ In addition, the Defendants are required to post an advertiser’s product that entered into a contract with the Defendants prior to the search results according to the search results by the search user. This is, as a result of the business site search results, posted on A’s “A’s knowledge shopping column.”

○ Internet users’ specific search results of links, business sites, and A’s knowledge shopping searched as above are connected to the screen produced by advertisers and registered in A.

[3]

An advertisers register a related search language that specifies and register his web page to indicate the results of the search by the Internet search users, and pay the price to the Defendants. The price is high as the Internet search users input multiple numbers, and even if the advertiser has selected the same search language, the web page of the advertiser who has paid a higher amount of money is posted on the top of the screen as a result of the search by the search users.

○ The Defendants provide users with services indicating the result of search on the web page of the advertiser who has already paid the price in advance to the link, business site or A knowledge shopping column (for example, “B Trts” (for example, “B Trts”) and only the plaintiffs’ names are entered into a key.

2. Determination as to the defendants' defense prior to the merits

The defendants asserted that the plaintiff's legal representative did not directly delegate a lawsuit from the plaintiffs and received the delegation of a lawsuit from the entertainment planning company to which the plaintiffs belong, and that the above entertainment planning company did not obtain the delegation of a lawsuit from the plaintiffs as to the lawsuit of this case, and therefore, the lawsuit of this case is unlawful because it was filed by the non-party who did not have the right of attorney.

However, according to the documents submitted by the plaintiffs, the legal representative of the first instance court and the first instance court recognized that all of the plaintiffs received lawful delegation of litigation from the plaintiffs, and there is no evidence to deem that there was lack of the plaintiffs' legal representative authority or authorization necessary for conducting litigation. Accordingly, the defendants' prior defense on the merits is without merit.

3. The plaintiff's assertion

A. Main assertion

An advertiser (including an open market, such as C) who sells clothes and liquid books through a web site and Blogs, purchased advertising services that combines the plaintiffs' names (for example: ○○○○, and △△△△△) and the product names, etc. from the Defendants (for example, ○○○○○ and △△△) with a view to publicizing his/her product sales site, and infringed the plaintiffs' rights of publicity by commercially using the plaintiffs' names without permission, such as allowing them to be exposed to their site addresses and advertising phrases, if the users input the plaintiffs' names and the product names in A website.

Although the Defendants were well aware that their key search advertising services are in violation of the Plaintiffs’ right of publicity due to their offer, the Defendants were taking enormous benefits while doing so by actively soliciting and inducing the purchase of key search advertising by using the Plaintiffs’ names, rather than withdrawing necessary measures to prevent the key, etc. from being registered. Therefore, the Defendants conspired and participated in the said act of publicity, or aided and abetting the advertiser’s infringement of the right of publicity.

The defendants' act constitutes an unfair competition act under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act"), and also constitutes a tort under the Civil Act.

Therefore, pursuant to Article 214 of the Civil Act or Article 300 (2) of the Civil Execution Act, the Defendants shall not use the Plaintiffs’ names or sell the keyboard search advertisement without the Plaintiffs’ permission. They are obligated to pay each of the Plaintiffs KRW 20 million for property damages suffered by infringement of the right of publicity.

B. Preliminary assertion

The defendants, without permission, infringed the plaintiffs' right to name by commercially using their names, and even if it is not so, the defendants conspiredd to violate the above right to name, or aided and abetted the advertiser's infringement of the right to name.

Therefore, according to the claim for prohibition and prevention of infringement on the ground of the infringement on the right to name, the defendants shall not use the plaintiffs' name or sell the KIKO search advertisement without the plaintiffs' permission, and the defendants are obligated to pay 20 million won to each of the plaintiffs as consolation money for mental suffering suffered from the above infringement on the right to name.

4. Determination

(a) Definitions of the key search advertisement 1);

The search of the Internet takes the method of searching and collecting information disclosed on the Internet, building a web database so that such information can be optimal to search engines, and then when the user enters the key to search windows, he/she takes the method of exposing the web server's address from the web database to the user's screen.

However, given that Internet search service providers, such as the Defendants, do not directly receive the fees for search, they receive a certain amount of money from the advertiser and create profits. As such, there are many results of search corresponding to the frequent information existing on the Internet. As such, depending on the location shown on the search result, whether users are engaged in the search by linking the actual link. As such, an advertiser who wishes to be exposed to a large number of search users is placed in a location where the address of his web page is actually high, and thus, the search service industry is obliged to pay the said fees to the search service industry. In order to maximize the effectiveness of the advertisement, in order to maximize the effectiveness of the advertisement, the author search who is searched by many users is related to his web page. In that case, it is because more people’s web page is exposed as a result of the search.

As such, the portal operator's advertisement that shows the web page of the advertiser on the screen as a result of the search user's receiving a certain amount of consideration from the advertiser, and the advertisement method is a key search advertisement, while the access rate is high as the search user is exposed only to the search user interested in the search, on the other hand, the advertisement cost is relatively low, so the advertiser's preference is an advertisement form.

2) Legal nature

The plaintiffs asserted that the keyboard search advertising is the trade of the keyboard, and that the keyboard in this case is the plaintiffs' names, so they trade the plaintiffs' names, and that the plaintiffs' names are commercially used.

The seller transfers the property right to the subject matter of sale to the buyer, and the buyer pays the purchase price to the buyer. According to the plaintiffs' assertion, the name of the buyer is the subject matter of sale and the seller has transferred the property right to the plaintiffs' name to the advertiser who is the buyer through the KIKO search advertisement. However, the property right to the name refers to the right to the right to publish. However, as examined below, the right to the name cannot be recognized as the property right to the name as the personal right. Therefore, the above assertion by the plaintiffs is without merit.

In addition, the KIKO search advertisement is determined by the advertiser’s payment to the Defendants, and it does not trade the KIKO. The KIKO search advertisement is determined depending on the frequency of the advertisement to be exposed to the search user. This frequency is depending on how the KIKO selected by the advertiser is available for search, and the advertiser’s web page is located in any location as a result of the search. As such, the price of the advertisement is determined according to the search language for convenience in the case of newspapers, as in the case of newspapers, and in the case of broadcasting, as in the case of KIKO search advertisement, it is determined by the time zone and program. Accordingly, if the KIKO search advertisement is a trade of KIKO search advertisement, the advertisement is also deemed to be a trade of the site and time zone. Therefore, the legal nature of the KIKO search advertisement is the advertisement contract for the products or services of the advertiser. Accordingly, any of the plaintiffs’ arguments is without merit.

B. Whether the right of publicity is acknowledged

1) The name is a mark identifying a specific individual from another person and simultaneously that name is a same.

On the basis of social relationship and trust formation, it has high sociality, while from the viewpoint of an individual who is the subject of personality, it has meaning as a symbol of character indicating himself/herself, and furthermore, it is the basis of the right to name, which is the right to manage and dispose of himself/herself, without being infringed on the profits connected to his/her name.

The right to name refers to the right to pursue happiness and the right to personality under the Constitution. The right to name generally covers the right to use his name without being disturbed by another person, and the right not to use his name without being disturbed by or without permission. The right to commercially use and control his name is included in the above right to name as a matter of course, and there is no need to recognize the concept of the right of publicity as a matter of course.

The plaintiffs asserted that the right of publicity should be recognized as an independent property right separate from real rights, claims, and intellectual property rights. However, according to the first sentence of Article 23 of the Constitution that the contents of property rights shall be prescribed by law, the intellectual property rights are recognized by the Copyright Act, the Trademark Act, the Patent Act, and the Design Protection Act, while there are no laws that recognize the right of publicity as an independent property rights.

Article 185 of the Civil Act provides that a real right shall not be created at will except as provided by law or customary law, even if the purport of the right of publicity is included not as an independent property right, but as an exclusive right similar to a real right in tort, transfer or inheritance, Article 185 of the Civil Act provides that the right of publicity shall be recognized as an independent right. In addition, it is difficult to deem that there is a need to recognize the right of publicity as an independent right, since it is possible to protect the right of publicity only by the name right recognized at present.

2) The Plaintiffs asserted that the amount equivalent to the price that could have been received at the time of concluding a regular contract on the right to name is a property damage. However, the passive damage refers to the amount of loss of profit that the victim could not have obtained by tort. Thus, the passive damage in the event of an infringement on the right to name refers to the loss of trust and scarcity in economic value that was lost by such infringement, namely, the economic value of the well-known name. Unless there are circumstances acknowledged, such as where the well-known person was unable to conclude a contract on the use of name with another person or where the contract on the use of name was terminated, the absence of a tort is a state of non-use, and the fact that the well-known person was entitled to receive the price is not due to a separate legal act that had concluded the contract on

Recognizing the right of publicity, the Defendants infringed the rights that are equivalent to the price to be paid when using their names with the consent of the Plaintiffs, which can be recognized as active or passive damages by the Plaintiffs, but the right of publicity cannot be recognized as above.

3) The Plaintiffs asserts that the Defendants’ acts violate the Unfair Competition Prevention Act. The purpose of the Unfair Competition Prevention Act is to prevent acts that violate other persons’ trade secrets and to maintain sound trade order by unfairly using domestically well-known trademarks, trade names, etc. (Article 1). Article 2 Subparag. 1 Item (j) of the Unfair Competition Prevention Act is to “other acts of infringing other persons’ economic interests by using the outcomes, etc. achieved from other persons’ considerable investment or efforts for their own business without permission in a manner contrary to fair commercial practices or competition order.”

However, even if the Defendants’ act was in violation of the Unfair Competition Prevention Act, the right of publicity cannot be recognized, and thus, the Defendants cannot be said to have infringed on the Plaintiffs’ economic interests. Moreover, as seen below, KIKO search advertising is a business method generally used on the Internet search portal site, it is difficult to recognize the algorithm itself as a method contrary to fair commercial practices or competition order as stipulated in Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act. Accordingly, the Plaintiffs’ assertion on this part is without merit.

C. Whether the right to name as personal right is infringed

1) Since a person’s name, portrait, etc. is a symbol of one’s personal character, the relevant individual has a right not to be used without permission for the name, portrait, etc. derived from his/her personal right. Therefore, if a person uses his/her name without permission without permission, it constitutes an infringement on his/her personal right and is liable for compensation for damages suffered by the victim, and the victim may file a claim for prohibition and prevention of such infringement. The name and portrait are a mark identifying a specific individual from another person; and such name and portrait are given

Based on the fact that social relationship and trust are formed, public record as a public record with high sociality is not recognized. Accordingly, there is no significance in the existence of public record prohibiting the use of another person. Therefore, the search user’s name and the primary subject’s consent cannot be prohibited from being used as a public record solely on the ground that the search user’s name is searched and used by the Plaintiffs. Accordingly, the search service provided by the Defendants itself cannot be prohibited from being provided by the search user; rather, the search service provided by the Defendants contributed significantly to the revitalization of the Internet by providing an opportunity to access another’s website or information; information users can easily search information without cost-bearing; thus, the search service provided as a social public record should be strengthened.

2) However, using another’s name and portrait in excess of the scope of public record is an infringement on another person’s name and portrait autonomous control, and its representative is a commercial use without the permission of another person. In particular, the name and portrait of a well-known person focuses on the interest and interest in goods and services, and has customer attraction resources to promote the sale of goods, etc. by inducing purchase intent. Thus, more likely infringement may occur on one hand, his name and portrait should be widely used, but their name and portrait should have social well-knownness. In addition, a well-known person’s name and portrait should be deemed to have wide scope of use as a mark, compared to the general public. Moreover, the name and portrait’s name and portrait’s name and portrait’s name should not be acknowledged in cases where the use of a pro-known person’s name and portrait’s name and portrait’s name are not unfairly restricted in the freedom of press and publication, or in cases where an artist’s name and portrait’s name and portrait’s name are not unfairly used in relation to the freedom of academic and artistic activities.

Therefore, the final illegality of the infringing act should be determined through the balancing of interests by comprehensively taking into account the circumstances in specific cases where the infringement of the right to name is constituted. In the course of balancing of interests, first, the factors that belong to the infringing act area include the content and gravity of interests to be achieved by the infringement, necessity and effectiveness of the infringement, supplementation of the infringement, urgency of the infringement, and reasonableness of the method of infringement. Second, the factors that belong to the damaged interest area include the content, gravity and degree of damage inflicted on the victim by the damage law, protection value of the damaged interest (see Supreme Court Decision 2004Da16280, Oct. 13, 2006). 3) The above facts are examined as follows: evidence Nos. 3, 3, 222, Eul evidence Nos. 1, 1, 2, 7, 8, 14, 18, 19, 21, 222, and 25 (Evidence numbers).

In a case where search users want to obtain information, such as clothes, shoess, shoess, or the goods of such one-day, and where the said goods can be identified, etc., the search users input kicks that combine the individual's name and the name of goods at the search site of the Internet portal site. An advertiser uses kicks that combines the individual's name and the characteristics of clothes, shoes, shoes, or the goods of such one-day, which the plaintiffs worn, with an expression that combines the individual's name and the function or characteristics of the specific goods to refer to the goods of such one-day. Thus, this is to use the plaintiffs' name as a public mark, and the search service of the defendants is corresponding thereto.

In a case where an artist, such as the plaintiffs, wishes or pursues his name to be widely disclosed to the general public, it cannot be said that his name has undermined the social assessment and reputation of the plaintiffs by frequently using it as search language.

C. In particular, the Defendants’ portal sites frequently search the Plaintiffs’ names and product names combined phrases, and thus, the Plaintiffs’ names and clothes worn by the Plaintiffs among the general public. An advertiser sponsoring the Plaintiffs is undergoing a large number of search on the portal site. If the Defendants are not allowed to freely provide the search service, the advertiser is unable to cause damage to the Plaintiffs on the ground that they are using the Plaintiffs’ names in the key search advertisement.

Since there are people using the same names as the plaintiffs' names, and some of the plaintiffs' honors are used as general masters, it may be technically difficult to manage or prohibit the keyboard containing the plaintiffs' names or honors.

In addition, the plaintiffs' name acquisition of customer attraction manpower is due to the plaintiffs' efforts and investment, but it is derived from the identity and well-knownness given by the Internet search portal site and the general public, including the defendants. Therefore, the benefit of the plaintiffs' names with customer attraction manpower cannot be considered to be exclusive for the plaintiffs.

In the case of newspapers or broadcasting advertisements, there is an advertisement containing the plaintiffs' names. The advertiser infringed the plaintiffs' rights to name, and thus the media, such as newspapers or broadcasting, is prohibited from receiving the price or distributing the price to the plaintiffs. The key search advertisement is a different method of advertisement depending on the characteristics of search service, and it does not change the characteristic as an advertisement intermediary.

A search service needs to be provided free of charge because it plays a role as a social public material. However, if a search service provider's source of revenue is obstructed, there is a risk that the search service will be weakened as a social public material. Although it is highly likely to artificially manipulate the search result by posting the search location of the advertiser web page in the upper end, it is highly dangerous to artificially manipulate the search result, but if the search user is advertising, it is aware that there is an advertisement shown by the search service provider, so the search user is an appropriate comparative balancing between search service and search service provider's interest as a social material.

In full view of the above circumstances, it cannot be said that the defendants' gain profits from the key search advertisement using the plaintiffs' names as search language is a commercial use that infringes the plaintiffs' rights to name.

D. Whether the defendants' joint tort or aiding and abetting liability is established

1) In order to establish the Defendants’ responsibility, the fact that the advertiser infringed the Plaintiffs’ right to name should be recognized. The infringement of the right to name should be an act of using customer attraction, such as attaching the Plaintiffs’ name to the goods for the purpose of using the name of △△ in itself as an independent product, etc., or using the Plaintiffs’ name as an advertisement of the goods, etc. The advertiser’s act of using the Plaintiffs’ name, such as using the Plaintiff’s name as an advertisement of the goods. In light of the foregoing, if the advertiser used the Plaintiffs’ name as an expression of the Plaintiff’s name, it cannot be deemed a commercial use. Furthermore, there is insufficient evidence to acknowledge that the advertiser infringed the Plaintiffs’ right to name, unlike the advertiser’s search result, shows the specific location of the search user’s computer screen according to the price paid by the advertiser. Whether access to the web page depends on the search user’s intent, and the advertiser’s web page constitutes a tort committed by the advertiser, and even if the advertiser’s liability is established, the Defendants’ joint tort is not recognized as a tort.

3) In addition, search service is merely providing a user with an opportunity to access another’s website or information, and finding illegal information is an act of a user, and it is the responsibility of a person who carried out illegal information. Barring special circumstances, search service provider cannot be deemed as having intended to search specific contents for the purpose of distributing illegal information. Therefore, search service is ultimately leading to illegal advertisements, and the Defendants received the price, and the search service provider’s aiding and abetting liability cannot be said to be established solely on the ground that search service provider’s aiding and abetting liability is established.

In addition, it is difficult for the search service provider to easily determine whether the illegal use of the web page as a result of the search is evident, and there are many persons, and there is also an artist using a name such as a general master, so it is difficult to prohibit or control the use of the search log containing a considerable number of entertainers.In addition, if the search service is easily recognized as responsibility for the result of the search, the service provider will act as an inspector for the data connected and presented by the link, and as a result, the online function will be reduced.

[The plaintiffs explicitly ask the defendants to bear the responsibility for joint tort or aiding and abetting the advertiser's tort. However, the defendants are explicitly liable for the KIKO search advertisement by asserting that the KIKO search advertisement constitutes a sale, and by asserting that the defendants established the Unfair Competition Prevention Act, the defendants are liable for the KIKO search advertisement itself. Accordingly, the above A, b, and c were examined.]

5. Conclusion

Therefore, the plaintiffs' claims in this case shall be dismissed in its entirety due to the lack of the reasons, and the judgment of the court of first instance is just in its conclusion, and all appeals by the plaintiffs are dismissed in its entirety due to the lack of reasons, and the additional claims by the plaintiffs in the trial are dismissed. It is so decided as per Disposition.

Judges of the presiding judge;

Judge Doo-man

Judges Clerks