[1] The elements for the form or shape of the product to constitute "a mark (mark) indicating that it is another person's goods" under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act

[2] The case holding that the form of the complete implementation of the Republic of Korea has the product mark under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act

[1] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 6421 of Feb. 3, 2001) / [2] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 6421 of Feb. 3, 2001)

[1] Supreme Court Decision 96Do2295 delivered on December 2, 1994 (Gong1995Sang, 526), Supreme Court Decision 96Do295 delivered on November 26, 1996 (Gong1997Sang, 147), Supreme Court Decision 96Ma365 delivered on November 27, 1996 (Gong1997Sang, 72), Supreme Court Decision 98Da63674 delivered on February 23, 2001 (Gong201Sang, 723 delivered on April 10, 201), Supreme Court Decision 98Do2250 Delivered on September 26, 201 (Gong201Sang, 1167), Supreme Court Decision 2000Da63675 delivered on September 14, 201 (Gong2098Da263689 delivered on September 26, 2007).

Young Unemployment Co., Ltd. (Law Firm Dakel, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Lee Young-young (Law Firm, Kim & Lee, Attorneys Yellow-in et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na40611 delivered on October 30, 2001

The part of the lower judgment regarding unfair competition is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

According to the records, such as the images of the attached Table 2-1 and (2) of the judgment of the court below, the complete shape of which the music produced and sold by the defendant flows out falls under the goods identical or similar to plastic completes, etc., which are the designated goods of the registered trademark of this case. From among the marks consisting of "Melodiy TUTRES" and "Mely TUTRES" used on the defendant's complete part of the registered trademark of this case, the term "Meldi" and "Meldi" indicate the shape of the goods. The term "Meldi" and "Meloy" can be perceived as a trader or a user with the word expressing the function of the goods flowing out, and the defendant's mark is directly reduced to "Meldi" in relation to the goods flowing out, and thus the defendant's trademark right of this case or technical mark indicating the nature of the goods using the registered trademark of this case constitutes a trademark of this case (technical mark). Thus, the defendant's use of the registered trademark of this case does not constitute an infringement of the plaintiff's trademark of this case.

2. Regarding ground of appeal No. 2

A. The court below found the following facts based on the evidence employed by the plaintiff that the plaintiff's production and sale of the plaintiff's complete equipment like the images specified in the attached Table 4 of the judgment below (hereinafter "the complete equipment of this case") was considerably known between the trader and the consumer as it was sold in Korea for a long time, and in light of the Gap evidence Nos. 1-1 through No. 3-11 of the evidence No. 3-2, etc., it is insufficient to deem that the form of the complete equipment of this case does not have the character of the product, and there is no other evidence to acknowledge it. Thus, the court below determined that the form of the complete equipment of this case does not constitute "a mark indicating other other person's goods" as stipulated in subparagraph 1 (a) of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act").

B. However, we cannot agree with the above determination by the court below for the following reasons.

Generally, the form or pattern of a product does not have a function to indicate the origin of the product, but is used as a means of giving a unique identity to the product, and its use continues, monopoly, or exclusive use for a long time, or its differentiated feature by continuous advertising advertising leads to a conspicuous differentiation of the product to the extent that it can be inferred into that it is a product of a certain source to customers or users, the product constitutes "mark indicating that it is another person's product" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act and may be protected under the same Act (see, e.g., Supreme Court Decisions 200Da67839, Feb. 8, 2002; 201Da59965, Oct. 24, 2002).

기록에 의하면, 이 사건 완구와 같은 유아용 완구 분야에서 동물들을 소재로 삼아 가족관계를 구현한 제품이 흔하기는 하지만, 이 사건 완구에 있어서, ① 테를 위로 접어 올린 형태의 동그란 모자를 쓰고 있으면서 배 부분과 직각을 이루는 머리 부분, ② 다소 커다랗게 형성한 눈과 약간 튀어나온 상태로 다물고 있는 입 부분, ③ 둥그런 형태의 바퀴 4개를 외부로 돌출하여 형성한 다리 부분, ④ 다각형을 방사상으로 배치하여 등 무늬를 표현하면서 바퀴가 있는 쪽을 바퀴의 형태에 맞추어 곡선으로 처리한 등딱지 부분 등이 조합되어 큰 거북의 형태를 이루고 있고, 그와 닮은꼴로 작은 거북의 형태가 구성되어 있는 점은 국내에서 유통되는 완구상품에 통상 있는 형태라거나 그 완구의 성질 내지 기능에서 유래하는 필연적인 형태라고 볼 수 없으며, 여기에다가 원심도 인정하고 있는 바와 같이 원고가 직원 모집 신문광고 등에 이 사건 완구의 형태를 배경 그림으로 표시한 적이 있고, 이 사건 완구는 한국 인더스트리얼 디자이너 협회가 1985.부터 1992.까지 나온 국산품 중에서 선정한 '좋은 디자인 상품'의 하나에 포함된 사실을 아울러 고려하면, 이 사건 완구의 형태에는 다른 완구 제품과 구별되는 특이성이 있다고 할 수 있다.

In addition, according to the facts established by the court below, since the plaintiff continuously sold the same kind of complete implements from around 1983 to around October 199, the period of sale of the complete implements of this case had been 16 years old, and according to Gap evidence Nos. 8, 13 and Lee Byung-soo's testimony as of December 1, 1992, the complete implements of this case stated that "the complete implements of this case is one million or more sold design 9,000 or more for 7 years" and that the sale of the complete implements of this case had been continuously 9,000,000 or more than 9,0000,0000,0000,000 or more than 9,0000,000,000,000,000 or more than 9,000,000,000,000,000,000,000,00.

On the other hand, the court below's determination that the complete form of this case was not equipped with a product mark, and that Eul evidence Nos. 1-1-1-1-13 was a design bulletin of the complete form in Japan between 1969 and 1982, and the concrete shape and shape of the complete form of this case are different from the complete form of this case, and unless there are circumstances to deem that it was commercialized and imported in Korea, it cannot be viewed that the complete form of the complete form of this case was used exclusively and exclusively in Korea. The complete form of evidence Nos. 2-1 through 14 was a complete form of the complete form of evidence Nos. 1-2-1-2-2-2-3-2-2-2-3-2-3-3-3-2-3-3-2-2-14-3-3-3-3-2-3-2-3-3-2-3-3-2-3-3-3-14-3-3-2-3-3-3-4-4-14-3-14-3-3-2-3-3-4.

Nevertheless, the court below's decision that the form of the pet in this case does not constitute a mark indicating another person's goods under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act is erroneous in the misunderstanding of legal principles as to the product mark under the law and failing to exhaust all deliberations, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the part of the judgment below regarding unfair competition among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)