UNNN Co., Ltd. (Attorneys Hwang Jong-sung et al., Counsel for the defendant-appellant)

Internet Channels Co., Ltd. (Law Firm White, Attorneys Kim Jae-chul et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Order 2008Kahap45 dated February 18, 2008

1.The decision of the first instance shall be modified as follows:

A. As to the case of a provisional disposition prohibiting manufacture, etc. by the Seoul Central District Court No. 2007Kahap2250 between the claimant and the respondent, the above court shall modify the provisional disposition order rendered on December 31, 2007 and revoke the remainder.

(1) The respondent is not allowed to advertise a computer user’s monitor (www.naver.com) connected to the applicant’s Internet site (www.naver.com) using the program listed in the [Attachment 2].

The execution officer shall make public the purport of the order in an appropriate manner.

B. The petitioner's motion for revocation of the above provisional disposition is dismissed.

2. The total costs of the lawsuit shall be five minutes, one of which shall be borne by the Claimant, and the remainder by the Respondent, respectively.

1. Applicant's purport and purport of appeal

The revocation of provisional disposition and the rejection of the application among the decision of the court of first instance shall be revoked. The above court approves the provisional disposition decision made on December 31, 2007 between the applicant and the respondent with respect to the case of the provisional disposition of prohibition of manufacture, etc. (2007Kahap2250) between the Seoul Central District Court and the respondent.

2. Purport of appeal by the respondent and purport of objection

Of the decision of the first instance, the part for the applicant shall be revoked. The above decision of provisional disposition shall be revoked, and the applicant's application for provisional disposition

1. Determination of provisional disposition, etc.;

With respect to the case of provisional injunction against manufacturing, etc. against the respondent of the Seoul Central District Court 2007Kahap2250, the above court accepted the applicant's application on December 31, 2007 on the condition of providing security, and the respondent shall not manufacture, use, sell, and distribute the programs listed in the separate sheet No. 1. B. The respondent shall release possession of the storage equipment where the program listed in the separate sheet No. 1 and its soften program are stored, and deliver it to the execution officer entrusted by the applicant. (c) The execution officer shall make the provisional injunction order of this case (hereinafter the above provisional injunction order order of this case shall be announced in an appropriate manner). In the above case of provisional injunction No. 2008Kahap450, which was initiated upon the respondent's objection, the above court should modify the provisional injunction order of this case and revoke the remainder of the above provisional injunction order of this case as follows. The respondent shall not make a public notice to the applicant's website (which is operated by the applicant's website):

2. Facts of recognition;

The following facts shall be recognized in accordance with the purport of the whole records and examinations:

A. Status of the parties

(1) The applicant company is a company operating a “NAV” on the domestic Internet portal site (www.naver.com) and is gaining advertising profits by attracting width advertisements from the advertisers and providing priority search results to the above portal site.

Sheet Respondent developed and distributed the program listed in the [Attachment 2] List, which is an advertising system using the Internet site (hereinafter “instant program”), and allows Internet users to download the instant program through “www.upk.co.kr, which is the Internet site it operates.”

B. Function of the instant program

(i) Business Models

The respondent recruited advertiser and attracts advertising using the program of this case, while designating companies and individuals who have joined the website of the respondent company as "distribution partner" and let the above "distribution partner" distribute the program of this case to the Internet through their shopping mall (for a member without shopping mall, the respondent makes and makes it possible for the member without shopping mall), music, e-mail, etc., and pay part of the profits generated therefrom to the "distribution partner".

【Method of Installation and Deletion

The program of this case can be downloaded regardless of whether the respondent is a member or not at the Internet site of the respondent. If the program of this case (the file name of the program is MyAD.exe) is implemented by downloading the program of this case, a notice, such as the attached Table 3, appears, and the contents of the software license agreement will appear, and if so, a notice of the following three-dimensional composition programs will appear in order.

【Upink L dayer Explanation】

It is replaced by the deletion of the ticket distribution advertising contained in the main text and the deletion of the existing ticket advertising program, or it is possible to keep new advertisements or contents at the same time.

[Upink Space Explanation]

In addition, I will find an empty space on the Internet web page of the program inserted in the lux Internet space included in the main text and insert appropriate new advertisements or contents.

[Upink Sear Explanation]

As a result of the KIKO program inserted advertising search included in the main text, it is possible to properly secure an empty space at the highest end and insert a new KIKO advertising advertisement or to keep a separate KIKO advertising window at the search result.

If each of the three programs is selected, a notice of the method of deletion can be seen and the user can finally choose the installation on the installation screen.

On the other hand, if the user does not temporarily want the service using the instant program, he/she may divide the “X” or “CLOSE” pressing on the individual advertisement and content, put the relevant advertisement and content onto the screen so that it can display its original advertisement, etc., and if he/she wishes to permanently delete the entire program of this case, he/she may delete it from the domain, such as “additional/ Deletion of the program”.

Article 【Action Contents

The purpose of the instant program is to allow Internet users who have installed the instant program on their own computers to display advertisements provided by the respondent directly on the Internet users’ computers when they visited a specific site (main portal site).

The program of this case installed on the Internet user’s computer is each operated by finding the applicant’s margin on the applicant’s Internet site and exposing the distribution advertisement chosen by the respondent (hereinafter “sponsing advertising method”), by covering the distribution advertisement chosen by the respondent (hereinafter “alternative advertising method”) in the advertisement column provided by the applicant, or by inserting the key advertising provided by the respondent between the search windows of the applicant’s Internet site and the key advertising provided by the applicant (hereinafter “key advertising method”).

In the distribution advertisement provided by the respondent using the instant program, the phrase “this content is indicated at the bottom of the Internet channel.” The key advertising is indicating the source of each advertisement as the respondent by setting up a space partitioned in the form of gambling between the search window and the key network advertising provided by the applicant, indicating the content of the advertisement in the space, indicating the contents of the advertisement in the space, and indicating “Upink Shear will be provided at the top of the Internet channel.”

3. Determination on the right to be preserved

The Claimant asserts that the instant program was unlawful for the following reasons, and sought a ban on the manufacture, use, sale and distribution of the instant program against the Respondent, and this is examined in turn.

A. Whether Act on Promotion of Information and Communications Network Utilization violates

The Claimant asserts that the instant program constitutes a “malicious program” under Article 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”).

Article 48(2) of the Information and Communications Network Act provides, “No person shall deliver or spread a program (malicious program) that may damage, destroy, alter, forge, or interfere with the operation of an information and communications system, data, program, etc. without any justifiable reason.”

However, the instant program is installed on the relevant user’s computer with the explicit consent of the user and operated only on the computer. Even if the instant program is implemented, the content itself of the relevant site where the respondent’s advertisement is displayed does not cause any change and does not affect the operation of the relevant site. In light of all the circumstances explained in the record, such as the fact that the user who does not want to use the instant program can temporarily or permanently delete it, it is difficult to conclude that the instant program is a malicious program that damages, destroys, alters, forges, or obstructs the operation of the applicant’s information and communications system, data, program, etc. without justifiable grounds. Therefore, this part of the applicant’s assertion is without merit.

B. Whether the Copyright Act or the Computer Programs Protection Act is violated

The Claimant argues that (i) the Respondent’s modification and modification of the screen display of the applicant’s internet site under the instant program without permission by the Respondent is an infringement of the applicant’s author’s moral rights, and the use of the applicant’s Internet site for advertisement constitutes an infringement of author’s property rights. Sheet program of this case, and in particular, the “KIKO advertising method” portion from the applicant’s Internet site to HTL file (the basic language used for creating ahyp sheet document, a HTL file) is downloaded from the applicant’s Internet site, and then the contents and composition are modified by using HTM file of the applicant’s advertisement, and it is an infringement of the applicant’s right to maintain the integrity of the computer program.

(1) Whether copyright has been infringed

The Internet homepage also can be protected as an independent work if creativity is created in the selection or arrangement of its composition form and materials. According to the facts recognized earlier, the screen of the Internet site operated by the applicant and the display advertisement, etc. (hereinafter “instant advertisement”) overlap with the screen (in the case of a substitute advertisement) or a part of the screen is modified (in the case of a inserted advertisement or a key advertisement).

However, as seen earlier, the instant program does not directly act on the content of the applicant’s website, but rather act only on the computer screen of the user who consented to the installation of the program, and it is indicated that the instant advertisement is an advertisement provided by the respondent. The instant advertisement can be easily removed only by striking the instant program in accordance with the method of deletion prior to the user’s prior notification or tamping “X”, etc. in each advertisement, and if the instant advertisement is removed, it cannot be deemed that the content or form is changed to the extent that it damages the identity of the screen of the applicant’s website, and thus, it cannot be deemed that the applicant violated the applicant’s right to maintain identity as an author’s moral right, and further, as long as the instant program is deemed to have committed any act such as reproduction, public transmission, distribution, etc. of the content of the screen of the applicant’s website, it cannot be deemed that there is any infringement of author’s property right. Accordingly, the applicant’s assertion of copyright infringement is without merit.

Doz. Whether the program copyright is infringed

According to the records, if the user entered a key unit into the search hold of the applicant's Internet site and then searched it, the user's Internet server sent the HTM file, which is the result of the search, to the user's computer, and the user's webblor, who was released from the above HTM file with a temporary stamper, carries a copy of the above HTM file with the mail box to indicate the result of the search. In this case, it can be recognized that the applicant's HTM code, which corresponds to the search key unit of the user's input, is inserted into the above HTL code of the applicant, which is inserted into the applicant's HTM code, and eventually, the webbler indicates the screen in which the respondent's key advertising was inserted.

However, HTM file constitutes “a series of instructions and orders used directly or indirectly within a device with a certain data processing capacity, such as a computer, to obtain a certain result,” under Article 2(1) of the Computer Programs Protection Act. However, the general HTM document itself, which does not include a separate web programming element, such as a technology that calls for a program in a separate website (Java to control the content and form of the web page), cannot be deemed as a creative expression because it is merely a form describing a door to display a web document and it cannot be seen as a creative expression separate from the content indicated by the applicant. Thus, even if the applicant asserts that the applicant’s right to maintain identity was violated as a program work, it cannot be seen that the applicant’s right to temporarily modifies the content of the program as an original copy of the computer screen that does not constitute an infringement on the applicant’s author’s moral right, as it does not include a part of the user’s moral right to use the original copy of the program, other than the general one to display it on the screen.

C. Whether an act of unfair competition has been violated

신청인은, 신청인의 인터넷 사이트가 신청인을 지칭하는 고유한 영업표지로 국내에 널리 알려져 있는데, 피신청인이 신청인의 인터넷 사이트에서 마치 신청인이 제공하는 광고서비스인 것처럼 광고를 함으로써 부정경쟁방지및영업비밀보호에관한법률(이하 ‘부정경쟁방지법’이라고만 한다.) 제2조 제1호 ㈏ , ㈐목 에 정한 바와 같이 신청인의 영업과 혼동을 불러일으키거나 신청인 표지의 식별력 또는 명성을 손상케 하고 있다고 주장한다.

살피건대, 부정경쟁방지법 제2조 제1호 ㈏목 은 ‘국내에 널리 인식된 타인의 성명, 상호, 표장 기타 타인의 영업임을 표시하는 표지와 동일 또는 유사한 것을 사용하여 타인의 영업상의 시설 또는 활동과 혼동을 일으키게 하는 행위(영업주체 혼동행위)’를, 같은 ㈐목 은 ‘ ㈎목 또는 ㈏목 의 규정에 의한 혼동을 하게 하는 행위 외에 비상업적 사용 등 대통령령이 정하는 정당한 사유 없이 국내에 널리 인식된 타인의 성명·상호·상표·상품의 용기·포장 그 밖에 타인의 상품 또는 영업임을 표시한 표지와 동일하거나 이와 유사한 것을 사용하거나 이러한 것을 사용한 상품을 판매·반포 또는 수입·수출하여 타인의 표지의 식별력이나 명성을 손상하게 하는 행위(식별력 손상행위)’를 각 부정경쟁행위로 규정하고 있다.

All of the above unfair competition acts requirements the “use” of goods identical or similar to the mark indicating the identity of another person’s business, and there is no special restriction on the type of use. However, in light of the purpose of the Unfair Competition Prevention Act to prevent the confusion of sources by using another person’s business in the act of unfair competition, in order to use another person’s business mark “use”, at least another person’s business mark should be used as a means indicating the identity of the person who committed the act of unfair competition.

However, in the advertisement of this case provided by the respondent using the program of this case, the source is specified in the phrase "this content has been provided in the hundreds of the Internet channel." In order to install the program of this case, the user must download the program of this case at his own option. In the event of installation, the user's guidance on the provider of the program of this case and the operating principle of the program of this case was given, and the individual consent of the user on the installation of the advertisement of this case was required at the three stages of the advertisement of this case as above.

In addition, all of the applicant's Internet homepage cannot be deemed as the applicant's business mark, and it can be deemed as a business mark only where the applicant's own distinctive character has been acquired among other components, such as the name of the website, colors, shapes, etc., and the advertisement of this case, at the same time as the applicant's business mark, is likely to gain unfair profits by taking advantage of the applicant's credit or customer attraction manpower, or to impair the distinctiveness or reputation of the above business mark, as long as the respondent removes the possibility of confusion about its source by specifying its business source, it shall not be deemed as "use of another person's business mark under the Unfair Competition Prevention Act (in particular, in light of the fact that Article 18 of the Unfair Competition Prevention Act provides for criminal punishment of unfair competitive acts under the above Article 18 of the Unfair Competition Prevention Act, it shall not be interpreted by expanding the concept of "use" by including the case where the other person's business mark and the other person's business mark together.

Therefore, this part of the claimant's assertion is without merit.

D. Whether business activities are obstructed

Even if the respondent's act does not fall under one of the unfair competition acts listed in Article 2 of the Unfair Competition Prevention Act, if it constitutes an infringement of another person's right or a benefit and protection corresponding thereto, or if the degree of violation is unfair to the extent of violation of business morality or customs, and it is recognized that the applicant's business obstruction and damage are recognized, it can be applied as a general law.

However, as seen earlier, the Internet portal site operated by the applicant mainly by attracting the advertiser, and each time the user who has installed the program of this case connects the applicant's Internet site. The advertisement of this case takes place by replacing the contents of the advertisement provided to the applicant as it is or using the part left in the space or inputting the search language by the user, thereby putting together the contents of the applicant's Internet site into the way of inserting the contents of the search windows and search results, which would have an effect similar to one another of the applicant's Internet site. As a result, it forms the appearance of the same as the applicant's advertisement provided by the applicant's Internet site (which is different from the pre-existing pop-up advertisement displaying the advertisement by holding it apart from the Internet site). In particular, if the program of this case is operated, it would not be fair to use the applicant's advertisement as a substitute advertisement for a long time, which would infringe upon the applicant's business order and order of competition in the applicant's commercial search result, which would eventually violate the applicant's business order and order.

E. Determination of the respondent's assertion

(i)the assertion on the right of employer;

The respondent argues that the respondent has a legitimate right to change the establishment of the Internet screen and freely use the contents transmitted on the user's computer, and that the user has a right to choose an advertisement as one of such rights, since the respondent has distributed the instant program with the explicit consent of the user and the program of this case only within the computer of the user, so long as the user distributes the instant program with the above rights of the user, it should be allowed as it realizes the user's rights, and the user's rights should not be infringed free competition or user's rights should not be infringed by forcing the user to display only the advertisement by using the applicant's exclusive status.

However, the case of TV, which can not be seen as a relatively easily visible advertisement, cannot be said to be identical to the Internet, a medium that is a relatively different medium. On the other hand, it cannot be deemed that the Internet webbreers provide general advertising deletion functions, etc., and further, it cannot be deemed that the commercial advertisement is permitted in a way that puts another advertisement in place for the advertisement or uses the content of another site as it is, on the other hand, in the change in the creation of individual screen by individual users’ choice.

In addition, even if the program of this case is installed with the consent of the user (if the person who consented to the installation of the program of this case and the actual user are different as the computer installed in the PC, the meaning of the above consent of the user is lost) is effective only between the employer and the respondent, and as seen earlier, insofar as the advertisement of this case is linked to the act of intentional interference with business exceeding the free competition limit by taking advantage of the credit accumulated by the applicant or customer attraction personnel with the accumulated content, it cannot be viewed as legitimate in relation to the applicant based only on the consent or right of the user.

Therefore, this part of the respondent's argument is without merit.

Shesing that the patent is executed.

The respondent asserts that the program of this case is legally legitimate, barring special circumstances, as the content of the respondent’s patent-related technology.

In light of the records, even though the respondent is recognized as holding a patent, such as the "Internet web page advertising system and method," and "advertising system and method using the web slaber," the respondent is not justified merely because the respondent's business using the program of this case is being conducted in the form of illegal unfair competition acts that infringe upon the plaintiff's legitimate business interests, as seen earlier, so long as the program of this case is being conducted in the form of the above unfair competition acts that infringe on the plaintiff's legitimate business interests. Thus, the respondent's above assertion is without merit.

【Claim that there is no possibility of mistake or confusion】

The respondent asserts that the advertisement of this case does not interfere with the applicant's business, since the respondent is not likely to mislead or confuse the advertisement of this case and the advertisement provided by the applicant due to the detailed notice notice and the indication of source such as "the Internet channel has been offered on a domination date" in the course of establishing the program of this case.

However, even if the source is indicated in the advertisement of this case, it cannot be concluded that there is no possibility of mistake or confusion as long as it is at least deemed that the applicant's Internet site is a sponsor, as seen earlier, since the advertisement is formed as one of the applicants' Internet sites, and as long as it is likely to be seen as an advertiser, and even if the user finally becomes aware of the source of the advertisement of this case, the respondent's advertisement is viewed as an advertisement with the applicant's visit or use of the applicant's Internet site first. In light of the above, the respondent conducts an advertisement by taking advantage of the applicant's credit accumulated by the applicant's Internet site or customer attraction personnel, and the advertisement provided by the applicant is in violation of the applicant's operating income by taking advantage of the applicant's credit accumulated by the applicant's Internet site or customer attraction personnel, and thus, it does not constitute an interference with business. Accordingly, the above argument is without merit.

m. The assertion that the use of the method disclosed by microflofts is justified.

The respondent has developed the program of this case using the "webrodoer Conver Control (Webows Control)" in the above Lburler, and the "Wever Control (Webows Control)" in the so-called webburler, which is a company that produces and distributes the web so that the developers may use the program of this case by changing the direction of the webburr to the direction that they want to use. As such, the respondent has used the program of this case by a legitimate method permitted by the manufacturer of the webburer, and the respondent claims that this act is a legitimate act of manufacturing and producing the program of this case.

However, even if the program of this case was developed by a lawful method permitted by the webbroer producer company as claimed by the respondent, it is clear that the webbroer merely carries out a program that implementss the function of making the Internet page on the screen of the computer user, and does not decide the business method using the advertisement of this case by the respondent, and as seen earlier, as long as the business related to the advertisement of the respondent, which is operated through the operation of the program of this case, is judged illegal, the development process of the program of this case cannot be deemed lawful by the fact that the process of the program of this case is lawful, and therefore, the above assertion is without merit.

4. Necessity of preservation and scope of provisional disposition; and

(a) Necessity of conservation;

In full view of the fact that the respondent's act of interference with the business of this case, unlike a single tort, is expected to continue repeatedly and repeatedly, and the monetary compensation after the fact is expected to be difficult to completely recover from damage, and the type of action of this case and the degree of illegality of this case's program and the expected damage of the applicant, and the situation where the respondent alleged the legitimacy of the program of this case's application for provisional disposition of this case and expressed his intention to continue to produce and distribute the program of this case, the respondent can seek provisional disposition seeking a prohibition of interference with business as a precautionary measure to avoid significant damage to the continued relation of right or prevent imminent danger, and therefore the application for provisional disposition of this case shall be sufficiently explained.

B. Scope of provisional disposition

The Claimant asserts that as long as the Respondent distributes the instant program through another Internet site and the instant program is carried out within the user’s computer, the Claimant cannot efficiently confirm and sanction whether the instant program is carried out on the applicant’s Internet site, the Respondent’s total prohibition of the manufacture, use, etc. of the instant program, the Respondent’s possession cancellation of the instant program, and the custody of the enforcement officer.

However, since the program of this case is not unfair in itself, if the operator of the Internet site who wants to advertise of this case consented to the operation of the program of this case (e.g., the operator of the shopping mall site who joined the respondent's distribution partner) and it seems possible to operate the program of this case in a lawful manner, and up to now, the respondent's business using the program of this case seems to be the initial stage of creation, and the respondent can freely allow anyone to freely get the program of this case on its own website, so it seems not to be relatively difficult to confirm whether the program of this case is implemented on the applicant's website. Thus, in light of the records, in order to prevent the applicant's business damage due to the program of this case, it seems that the respondent can sufficiently achieve its purpose only by prohibiting the applicant from advertising act using the program of this case to the computer user's monitor connected to the applicant's Internet site, and further, it does not seem necessary to take measures such as prohibiting the manufacture, use, etc. of the program of this case and the cancellation of the respondent's possession of the program of this case.

In addition, the decision of the first instance court ordering that "no security warning (certification) for the installation of the program of this case shall be posted on the monitor of computer users connecting the applicant's Internet site" in the text A. However, as seen earlier, it is clear that it is a content different from the present contents of service of the respondent who is obliged to receive prior download the program of this case on a separate website other than the applicant's website and is obliged to install the program of this case, and therefore, it is not necessary to grant provisional disposition.

5. Conclusion

Therefore, the applicant's application for provisional disposition of this case is justified only within the scope of "to prohibit the applicant from doing advertising activities using the program of this case to the monitors of computer users who access the applicant's Internet site". Thus, the decision of this case is modified within the above scope, the decision of the remaining part is revoked as it is without merit, and the application for provisional disposition for the cancellation part is dismissed. The decision of the court of first instance is unfair with some different conclusions, and it is so decided as per Disposition.

[Attachment of List]

Judges Park Dong-dong (Presiding Judge)