[1] Criteria for determining the meaning and use of a trademark right

[2] The case holding that the defendant's act of collecting a disposable-use carer's empty container affixed to the latter film and then manufacturing and selling a part of the paper film with a film film affixed to the latter, thereby infringing the registered trademark of the latter film and causing confusion

[3] The scope of restriction and standard for determination of the exhaustion and exhaustion of trademark rights

[1] The use of another person's registered trademark on goods identical with or similar to the designated goods constitutes an act infringing another person's trademark right. However, even if it is used by another person's registered trademark, it shall not be deemed an act infringing another person's trademark right if it is not intended to indicate the source which is the essential function of the trademark, and thus it is not recognizable as the use of the trademark. In order to determine whether it is being used as a trademark, it shall be determined by considering the relation with the goods, how the mark is used (i.e., the location, size, etc. indicated on the goods), how the trademark is widely and well-known, how the trademark is used, and how the mark is actually used as a trademark identification.

[2] The case holding that the defendant's act of collecting a disposable-use carer's container affixed to the latter film and then manufacturing and selling a part of the registered trademark on films and new packaging, which infringed the registered trademark of the latter film and caused confusion

[3] Where a trademark right holder, etc. transfers goods bearing a registered trademark in Korea, trademark rights for the goods concerned shall be deemed to have been achieved, and thus, the effect of trademark rights shall not extend to the use, transfer, or lending of the goods concerned. However, in cases of processing or repairing the goods to the extent that it would impair the identity of the original goods, it shall be deemed to have infringed the trademark right holder's rights in such cases. Whether the goods constitute an act of production as a result of processing or repairing to the extent that it would prejudice the identity should be determined by taking into account the objective nature, form, purpose of the trademark law provisions, functions of trademark, etc.

[1] Article 66 subparag. 1 of the Trademark Act / [2] Articles 66 subparag. 1 and 93 of the Trademark Act, Articles 2 subparag. 1(a) and 18(3)1 of the Unfair Competition Prevention and Trade Secret Protection Act / [3] Articles 50, 66 subparag. 1 and 93 of the Trademark Act

[1] Supreme Court Decision 96Do1424 delivered on February 14, 1997 (Gong1997Sang, 830)

Defendant

Defendant

Attorney Shin Jae-chul

Changwon District Court Decision 2001No2235 delivered on June 12, 2002

The appeal is dismissed.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below rejected the defendant's 30,000 won of monthly average of 30,000 won of 30,000 U.S.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.MM.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.M.MMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM.M

2. Judgment of the Supreme Court

A. According to the reasoning of the judgment below, the court below found the defendant guilty of the facts charged in this case including the criminal intent of infringement of trademark rights by taking account of the adopted evidence, and compared with the records, the judgment of the court below is just and there is no error of law such as misconception of facts due to violation of the rules of evidence, as otherwise alleged in the ground of appeal.

B. The use of another person's registered trademark on goods identical with or similar to the designated goods constitutes an act of infringing another person's trademark right. However, even in the case of using another person's registered trademark, it shall not be deemed an act of infringing another person's trademark right in a case where the use of the trademark is not recognized because it does not aim at indicating the source which is the essential function of the trademark (see Supreme Court Decision 96Do1424, Feb. 14, 1997). In order to determine whether a trademark is being used as a trademark, it shall be determined by considering the relation with the goods, the mode of use of the mark (i.e., the location, size, etc. indicated on the goods), the widely and well-knownness of the registered trademark, and the intent and circumstances of the user's use.

In light of the records, the court below's decision that the defendant's trademark "after-sale film 1" was no more than 70% of the 1993 trademark "after-sale 1" and that the defendant's trademark "after-sale 1" was no more than 1 "FIM" and the defendant's trademark "after-sale 1" was no more than 1 "FIM's new trademark "after-sale 1" and the defendant's trademark "after-sale 1" was no more than 3m-sale 3m-type malk's trademark "after-sale 193, it is hard to find that the defendant's trademark "after-sale 1" was no more than 1 malk's new trademark "after-sale 1" and it was no more than 1 malk's own name "after-sale 193.

C. Unless there are special circumstances, where a trademark right holder, etc. transfers goods bearing a registered trademark in Korea, trademark rights on the goods concerned shall be deemed to have been achieved, and thus, the effect of trademark rights shall not extend to the use, transfer, or lending of the goods concerned. However, in cases of processing or repairing to the extent that it is detrimental to the identity of the goods originally produced, it shall be deemed to have infringed the trademark right holder's rights in such cases. Furthermore, whether it constitutes an act of production as a result of processing or repairing to the extent that it harms the identity of the goods should be determined by taking into account the objective nature of the goods in question, the form of use, the purport of the

In light of the records, it can be acknowledged that the defendant's act falls under the case where the defendant's act was done by changing the original quality or shape to the extent that it damages the identity of the goods beyond the mere processing or repair scope, and this constitutes a new production act, so the trademark right holder's trademark right of this case can still exercise the trademark right of this case under the premise that the defendant's trademark right of this case can still exercise the trademark right of this case under the premise that the defendant still exercises the trademark right of this case on the premise that the trademark right of this case is a new production act.

3. Conclusion

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

Justices Shin Hyun-chul (Presiding Justice)