[1] Whether Article 15 of the Unfair Competition Prevention and Trade Secret Protection Act applies to a case where the purpose of trademark right registration is not to distinguish one's goods from another's goods, but to gain profits by causing confusion with another's goods by using a trademark identical or similar to another's trademark widely recognized in Korea (negative)

[2] In a case where a trademark which is not registered under the Trademark Act has been used for a long time, and thus customers or ordinary consumers have widely recognized as indicating the goods of a certain person, whether it constitutes a product mark protected under the Unfair Competition Prevention Act (affirmative)

[1] Article 2 subparag. 1 and Article 15 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparag. 1 and Article 15 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] [2] Supreme Court Decision 94Do3287 delivered on November 7, 1995 (Gong1995Ha, 3954) / [1] Supreme Court Decision 92Do2054 delivered on January 19, 1993 (Gong1993Sang, 781) Supreme Court Decision 2000Da4487 delivered on April 10, 2001 (Gong2001Sang, 1100) / [2] Supreme Court Decision 97Do322 delivered on April 23, 199 (Gong199Sang, 1088)

Defendant 1 and one other

Defendants

Law Firm Rate, Attorneys Kang Dong-gu et al.

Supreme Court Decision 2003Do3906 Delivered on January 26, 2006

Seoul Central District Court Decision 2006No354 Decided November 28, 2006

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the third ground for appeal

Examining the reasoning of the judgment of the court below in light of the purport of the judgment of remanding and the records, the court below acknowledged the facts as stated in its judgment after compiling the evidence employed by the court below, and there is no error in the misapprehension of legal principles as to unfair competition acts, violation of the rules of evidence, etc., as otherwise alleged in the grounds of appeal, such as the misapprehension of legal principles as to the unfair competition acts, and violation of the rules of evidence, etc., as alleged in the grounds of appeal.

2. As to the grounds of appeal Nos. 1 and 2

가. 기록에 비추어 살펴보면, 비록 ‘더 챈슬러, 매스터스 앤드 스칼라스 오브 더 유니버시티 오브 캠브리지’가 2000. 5. 25. 출원하여 2002. 5. 8. 등록받은 상표를 피고인들이 그 승낙을 받아 사용하였다고 하더라도, 원심판결 이유에 나타난 피해자의 상표의 주지성의 획득시기 및 그 과정, 피고인들의 의도 및 행위태양, 위 등록상표의 출원경위 및 과정 등을 고려하여 보면, 피고인들은 자기의 상품을 타인의 상품과 식별시킬 목적으로 한 것이 아니고 국내에서 널리 인식되어 사용되고 있는 피해자의 상표와 동일 또는 유사한 상표를 사용하여 수요자로 하여금 피해자의 상품과 혼동을 하게 하여 피해자의 상표의 이미지와 고객흡인력에 무상으로 편승하여 이익을 얻을 목적으로 하는 것으로서, 설사 권리행사의 외형을 갖추었다 하더라도 이는 공정한 거래질서를 해치는 것으로서 상표법을 악용하거나 남용한 것이 되어 상표법에 의한 적법한 권리의 행사라고 인정할 수 없으므로 이러한 경우에는 부정경쟁방지법 제15조 의 적용이 배제된다 ( 대법원 1993. 1. 19. 선고 92도2054 판결 , 대법원 2001. 4. 10. 선고 2000다4487 판결 등 참조). 따라서 원심이 피고인들의 상표사용행위는 국내에 널리 알려진 피해자의 인지도에 편승하여 이익을 얻으려고 상표법을 악용 내지 남용한 것이어서 상표법에 의한 적법한 권리의 행사라고 인정할 수 없다고 판단하였음은 정당한 것으로 수긍이 간다.

B. In order to ask the defendants for the crime of unfair competition, the defendants' intention is the same as the theory of lawsuit, but the defendants' intent may be sufficiently recognized in light of the above circumstances. Furthermore, Article 16 of the Criminal Act provides that "the act of the defendants' act of misunderstanding that it does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding" does not mean a simple legal site, but it is generally a case that constitutes a crime, but it is true that one's own act does not constitute a crime that is permitted under the law in its special circumstances, and if there is a justifiable ground for misunderstanding that his act does not constitute a crime, it shall not be punishable (see Supreme Court Decision 2005Do3717, Mar. 24, 2006). In this regard, it is affirmed that the court below determined that the defendants' act was not a justifiable ground for misunderstanding that his act was not a crime in consideration of the various circumstances in its ruling.

C. Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the Defendants' intentional intent and violation of the rules of evidence as otherwise alleged in the ground of appeal.

3. As to the fourth ground for appeal

The provision of Article 15 of the Unfair Competition Prevention Act, if there is a provision different from the provision of the Unfair Competition Prevention Act, is limited to that of the relevant law, and even if a trademark is not registered under the Trademark Act, if it is used for a long time and thus customers widely recognize it as indicating a certain person's goods, it constitutes a product mark protected under the Unfair Competition Prevention Act (see Supreme Court Decision 97Do322 delivered on April 23, 199).

In this case, where the trademark of the injured party is indicated the goods of a specific person and constitutes a product mark protected by the Unfair Competition Prevention Act, which is widely recognized domestically, the issue of whether the injured party's trademark falls under Article 7 (1) 3 and 6 of the Trademark Act shall not affect the conclusion of this case. Thus, although the court below did not make an explicit decision on this part, it does not affect the conclusion of the judgment.

4. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)