Seoul High Court Decision 200Na11446 decided May 1, 200

The Governor of Jeju Special Self-Governing Province (Attorney Kang Jin-hun, Counsel for defendant)

Jeju Broadcasting Co., Ltd. (Law Firm Searchra, Attorneys Go Sung-sung et al., Counsel for the defendant-appellant)

September 27, 2017

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

On January 20, 2016, the defendant's acceptance of reports on the succession to the status of newspaper enterprisers and revocation of registration of changes to newspaper business with respect to the Intervenor joining the Defendant (hereinafter referred to as "participating").

1. Details of the disposition;

A. The Plaintiff’s establishment history

1) On December 31, 1962, Jeju Youth Co., Ltd. (hereinafter “ Jeju Youth”) was established on December 31, 1962 and published a newspaper under the title “ Jeju Youth” from around that time, but from November 1, 1996, he was the holder of the right to each of the trademark rights listed in [Attachment 1 omitted] and [Attachment 1] to 3 (hereinafter “each of the trademark rights of this case”).

2) When the Jeju Youthian was faced with the management crisis due to financial difficulties, etc. around December 2012, the representative director of the Jeju Youthian at that time delegated the management of the Jeju Youth on December 7, 2012 to its executives and employees, and a large number of executives and employees were establishing the Jeju Youth Emergency Countermeasure Committee (hereinafter “Emergency Countermeasure Committee”) to continue the publication of the Jeju Youth by the end of the normalization of the company on December 9, 201.

3) On August 27, 2013, Nonparty 3, who was a director of the Jeju Youth Company at the time, established the Plaintiff (the first trade name of the company was “the Jeju Youth Examination,” but the trade name was changed to the present around October of the same year) on August 27, 2013. Around that time, the positions of the majority of executives and employees who were employed in the Jeju Youth Company were changed to the Plaintiff in the form of new employment. Meanwhile, on the other hand, the public sale disposition was taken by the Korea Asset Management Corporation on July 2013 for the major facilities for publishing newspapers, such as newspapers, company houses, and leap Electricity.

4) On September 2013, the Plaintiff entered into a contract to establish an exclusive license agreement (hereinafter “instant contract”) with the Jeju Youthian and each of the instant trademark rights, and the title, etc., with a contract deposit of KRW 1 million, monthly user fee of KRW 500,000,000, and the term of the contract from September 27, 2013 to the time of sale by public auction, etc. of each of the instant trademark rights (However, the contract was renewed under mutual agreement prior to the expiration date, and if the trademark rights are sold by public auction, etc., the Plaintiff entered into a contract to establish the exclusive license (hereinafter “instant contract”) with the Plaintiff, the licensee of the license, to the Plaintiff, who was the right to use the contract deposit, and completed the registration of the exclusive license of each of the instant trademark rights on December 9, 2013.

5) On September 24, 2013, after completing registration (registration number 2 omitted) under the Act on the Promotion of Newspapers, Etc. (hereinafter “Examination Act”), the Plaintiff published a general daily newspaper under the title of “the “certificate of permission for registration of the same title” in the name of the Jeju journal, which was made from September 27, 2013 to the expiration date of the instant contract from September 27, 2013 to the expiration date of the instant contract” (hereinafter “certificate of permission for registration of the same title”) and “the Jeju newsletter”).

6) On October 23, 2013, the head of Jeju District Tax Office closed down the Jeju Bond.

B. The transfer process of the trademark right of this case

1) On January 24, 2013, 7 co-representatives of non-party 2 and non-party 2 and non-party 2 acquired each of the trademark rights of this case from the Jeju Assistants, and completed the registration of transfer of rights, and on April 11 of the same year the Jeju Assistants acquired each of the above trademark rights from non-party 2, etc. and completed the registration of transfer of rights.

2) In the sale procedure conducted under Jeju District Court 2013TTT 41788 upon an application for compulsory execution against each of the trademark rights of this case by employees who were not paid retirement allowances, etc. thereafter, Nonparty 4, a dynamic of Nonparty 1, purchased each of the trademark rights of this case in KRW 900 million on December 23, 2014, and completed the registration of transfer of rights on January 19, 2015, the exclusive license registered in the name of the Plaintiff was revoked on July 10 of the same year.

3) On August 6, 2015, an intervenor acquired each of the trademark rights of this case from Nonparty 4 and completed the registration of transfer of rights (the claim for a trial on the registration of each of the trademark rights of this case was filed between the plaintiff and the intervenor, etc., respectively, and the Korean Intellectual Property Tribunal rendered a trial decision on the invalidation of each of the trademark rights of this case. The intervenor appealed against this claim and filed a lawsuit seeking the revocation of the relevant trial decision, but each of the trademark rights of this case was revoked upon the confirmation of the lawsuit to the effect that the intervenor rejected the claim of the intervenor.

(c) Intervenor's commencement of examination business and succession to status;

1) The Intervenor was established on August 4, 201, and engaged in various sales business, etc. of recycled products under the trade name, “SBK,” but on December 23, 2014, the Intervenor changed the purpose of business by adding a new newspaper publishing business and broadcasting business, etc. on behalf of the existing business, and changed its trade name as at the present date. The Intervenor completed the registration under the Newspapers Act by deeming No. 1337, Jul. 29, 201 as the “New Daily Report” (registration No. 3 omitted).

2) On August 17, 2015, Nonparty 4, the representative director of the Intervenor, entered into a contract of transfer and takeover with Nonparty 1, the representative director of the Jeju Youth Company, who was detained at the time, to acquire without compensation all rights to order, newspapers, publication, sale and business, and the copyright of the newspapers and the copyright of the Internet news and the domain name of the Internet, the website operation, etc. (hereinafter “instant transfer and acquisition contract”).

3) On September 8, 2015, the intervenor completed the registration to change the existing title to the Jeju newsletter (the consent to use the title was submitted in the name of representative director at the time of the application for the change of the title), and from November 16 of the same year, he/she was issued an examination under the title of the Jeju newsletter. Meanwhile, with respect to the Intervenor’s application for provisional disposition (No. 2015Kahap286, etc., Jeju District Court Decision 2015) against which the Plaintiff seeks to prohibit the use of each trademark right in the instant case for newspapers, etc., he/she changed the title of the newspaper to the “j Jeju newsletter” around December 2015, and thereafter, published the general daily newspaper under the relevant title (No. 4) (the Plaintiff omitted the registration of the Jeju News) separately from the existing registration that was made on August 31, 2015.

4) On November 2, 2015, Jeju Youth sent an official document requesting the Defendant to cancel the registration of title, etc. following the Plaintiff’s use of title without permission, and on November 9, 2015, the Defendant requested the Plaintiff to suspend the use of the Jeju Youth title, stating that “the contract term under the instant creation contract is stipulated by the time of the sale of each of the instant trademark rights.”

5) On January 11, 2016, the Intervenor reported to the Defendant the succession of the status of the Jeju Assistants under Article 14 of the Newspapers Act on the ground of the instant transfer/acquisition agreement, and applied for the subsequent modification of the registered matters of the publisher, editor, etc., and the Defendant accepted the Intervenor’s report, etc. on January 20, 2016 (hereinafter “instant disposition”).

6) Around May 2016, the Plaintiff: (a) succeeded to the status of a newspaper enterpriser under the title of the Jeju newspaper; and (b) reported the succession to the status of the newspaper enterpriser to the Defendant; (c) however, the Defendant notified the Defendant of the failure to accept the said report on June 14, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 10, 16, 17 (including those with a serial number; hereinafter the same shall apply), Eul evidence 1 through 4, Eul evidence 1 through 7, and the purport of the whole pleadings and arguments

2. The plaintiff's assertion

Around September 2013, the Plaintiff completed the registration of a newspaper enterpriser under the understanding of the Jeju newspaper company under the same title as the registration title of the above company. However, the Defendant: (a) deemed that all existing business rights including the registration title of the Jeju newspaper have been transferred to the intervenors; (b) in violation of Article 9(5) of the Newspapers Act, the Defendant accepted the Intervenor’s report on succession to the status of the newspaper enterpriser and the application for change of the registered matters therefor without obtaining the Plaintiff’s consent; and (c) thereby, the Plaintiff suffered legal disadvantage in the daily newspaper, etc. currently published.

Meanwhile, the instant transfer/acquisition agreement between the Jeju Youth and the Intervenor, except for the acceptance of large amount of debt incurred by the Jeju Youth, was made without due process such as the resolution of the board of directors at the time, and the Intervenor constitutes Nonparty 1’s breach of trust and the fraudulent act as well as the Intervenor’s active participation. As such, it is not effective pursuant to Article 103, etc. of the Civil Act. Accordingly, the instant disposition against the Defendant, which accepted the report of succession to the status of the newspaper enterpriser from the Jeju Youth on the premise that the transfer/acquisition agreement of this case is valid, should be revoked in this respect.

3. Whether the lawsuit of this case is legitimate

A. The instant disposition is subject to the Intervenor’s report on the succession to the status of the newspaper enterpriser who is not the Plaintiff. However, even a third party, who is not the other party to the instant administrative disposition, may seek the revocation of the relevant administrative disposition where there is a legal interest to seek the revocation of the relevant administrative disposition. In this case, legal interest refers to a specific interest directly protected by the relevant law based on the relevant disposition (see Supreme Court Decision 98Du7923, Apr. 25,

B. However, the Plaintiff and the Intervenor may be deemed as having a factual competitive relationship as a newspaper enterpriser of the same kind. However, the newspaper law, in principle, guarantees the freedom and independence of the press about newspapers in order to increase the freedom of the press and form democratic public opinions (Articles 1 and 3), and among them, the freedom of the press includes the freedom of the press to establish a newspaper company.

However, Article 9(5) of the Newspapers Act declares the so-called principle prohibiting the use of the same title by stipulating that “no newspaper with the same name as that of the already-registered newspaper may be registered,” except for the case where an existing business operator permits the use of the same name.” The above provision aims at preventing readers’ mistake and confusion concerning the publishing entity, etc. due to double registration under the same subparagraph, and preventing any disadvantage and incompetuity in the management of newspaper business operators thereby. Thus, the existing business operator who completed registration of newspaper business under a specific title is legally interested in seeking the revocation of the same title registered in violation of Article 9(5) of the Newspapers Act.

However, in order for the existing newspaper enterpriser to seek cancellation of the measure taken by the administrative agency which accepted the registration of the same title as the competitor, the registration of his own title should be based on the relation with the competitor. If, regardless of the cancellation of the registration of the competitor's title in specific cases, the existing enterpriser cannot use the same title because the same title registered by the existing enterpriser is cancelled, it is reasonable to view that the existing enterpriser has no legitimate interest to seek cancellation of the relevant disposition.

C. The registration of the Plaintiff on September 24, 2013 was made by himself/herself in relation to the Jeju Youth, an existing business entity, and thus unlawful in principle. However, at the time, the Plaintiff completed the registration under Article 9(5) proviso to Article 9(5) of the Newspapers Act with the consent of the Jeju Youth.

However, at the time of the Plaintiff’s registration of the foregoing title, the period of use of the “At the time of the instant contract” was limited to the expiration date of the instant contract, and the instant contract is deemed to be the term of the contract even before “the time of sale by public auction, etc. of each of the instant trademark rights” (under the overall purport of the entries and pleadings as to the evidence No. 10, around January 2014, it is difficult to view that the term of the instant contract was modified from the auction procedure, etc. on the premise that the additional agreement under the instant contract, which was prepared under the name of the Jeju Youth and the Plaintiff, regarding each of the instant trademark rights, was written “the period of establishment of exclusive license for each of the instant trademark rights (as of October 22, 2017, November 14, 2017, and September 27, 2021, the term of the exclusive license stated in the relevant trademark register), even after the Plaintiff’s registration of the said title, etc. was written.

Therefore, when each trademark right of this case was sold to Nonparty 4 in accordance with the order to sell Jeju District Court No. 2013TTT 4178 around December 2014, it is deemed that the Defendant actually withdrawn the consent to use the title against the Plaintiff having a temporary nature. In fact, on November 2, 2015, the Defendant sent a public notice to the Defendant to the effect that the Plaintiff’s consent to use the title “No. 1” was against the effect of each trademark right of this case. The reason why the period for the Plaintiff’s consent to use the same title expires for the same reason is irrelevant to the effect of each trademark right of this case.

D. Ultimately, the Plaintiff registered the foregoing subparagraph against Article 9(5) of the Act on Examination in relation to the Jeju Youth who withdrawn the consent to use the “ Jeju News,” which is irrelevant to the validity of the transfer, acquisition, or succession to the status of the newspaper enterpriser, which was concluded between the Plaintiff and the Intervenor. Therefore, even if the disposition of this case is revoked based on the premise that the Intervenor acquired the status of the Jeju News, the Plaintiff, who is deemed to have lost the right to use the “ Jeju News,” cannot be deemed to continue to use the said subparagraph even if the disposition of this case was revoked, and thus, there is no legal interest in seeking the revocation of the disposition of this case against the Intervenor.

4. Conclusion

If so, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

[Attachment]

Judge Kim Jin-young (Presiding Judge) and Kim Jin-hee