In a case where Gap, the owner of a design right, filed a lawsuit against Eul seeking compensation for damages suffered by Eul due to Eul's infringement of Eul's design right, and sought compensation for the attorney's expenses incurred in the previous case of claiming provisional injunction against infringement of design right filed against Eul, the case affirming the judgment below that the above attorney's expenses were inevitably disbursed in order to prevent the infringement of Eul's design right infringement or the expansion of damages, and thus, the above attorney's expenses constituted damages that Eul should compensate for within a considerable extent

Article 64(5) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013) (see current Article 115(6)), Article 750 of the Civil Act

[Judgment of the court below]

Defendant (Law Firm Woo, Attorneys Park Dong-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na35699 Decided September 25, 2015

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The argument in the grounds of appeal that the Defendant had a non-exclusive license by prior use is a new argument that should only be raised in the final appeal, and thus cannot be a legitimate ground of appeal.

2. As to the grounds of appeal Nos. 2 and 3

Based on its stated reasoning, the lower court: (a) determined the amount of damages incurred by the Defendant by the infringement of the design right of this case, or because it is difficult to calculate the total amount of profit acquired by the Defendant by the infringement of the design right of this case; or (b) determined the amount of damages by the Plaintiff pursuant to Article 64(2) of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013); and (c) determined the amount of damages pursuant to Article 64(5) of the same Act; and (d) determined the amount of

Examining the relevant legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

3. Regarding ground of appeal No. 4

Based on its reasoning, the court below accepted the judgment of the court of first instance, and found that the Plaintiff spent 7 million won at the attorney’s expense for the case of applying for provisional disposition against infringement of the design right of this case, which was inevitably disbursed to prevent the Defendant from preventing infringement of the design right of this case or from expanding damage, and determined that the attorney’s fee corresponding to the proximate causal relation with the Defendant’s infringement of the design right of this case should be deemed as KRW 4 million in full view of the circumstances as stated in its reasoning.

Examining the relevant legal principles and the evidence duly admitted, the above determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the

4. Conclusion

The appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)