[1] Criteria to determine whether a mark indicating another person's goods is widely known in Korea under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[2] Requirements to be protected as "a mark indicating another person's goods widely known in the Republic of Korea" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 1 (a) and Article 18 (3) 1 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 2007Do10562 Decided September 11, 2008 (Gong2008Ha, 1408) Supreme Court Decision 2010Do6187 Decided May 9, 2012 (Gong2012Sang, 1018) / [2] Supreme Court Decision 2006Do1157 Decided July 13, 2007 (Gong2007Ha, 130), Supreme Court Decision 2006Do267 Decided November 29, 2012, Supreme Court Decision 2010Do8383 Decided February 9, 2012

Defendant

Defendant

Attorney Kim Jong-hwan et al.

Seoul Central District Court Decision 2011No534 decided August 10, 2011

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. Whether a mark indicating another person's goods is widely known in the Republic of Korea under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") constitutes "mark indicating another person's goods" as provided in Article 2 subparagraph 1 (a) of the same Act shall be based on the period of use, method, pattern, quantity of use, scope of transaction, etc., actual circumstances of goods transaction, and whether it is objectively widely known under social norms (see, e.g., Supreme Court Decisions 2003Do7827, Apr. 13, 2006; 2007Do10562, Sept. 11, 2008). Meanwhile, if a certain type of goods obtains its origin display function and its well-knownness, it shall be limited to 07 percent of the specific type of goods or its unique nature of the goods to the extent that it is clearly distinguishable from other similar goods by the Supreme Court's decision 200% of the general consumers or its independent character.

2. According to the evidence duly adopted and examined by the court below, the victim non-indicted corporation (hereinafter "victim corporation") was engaged in sales in Korea since the conclusion of a general sales contract with the victim company's company's company that produces and sells "verging product" as the trademark "(hereinafter "the trademark of this case") around July 2004, 200. The victim company's sales in Korea was 70 billion won from around 70 billion won to December 2007; the victim company's sales in Korea was 70 billion won from around 70 billion won to 700 billion won; the victim company's sales in Korea was 70 billion won from around 200 billion won to 2070 billion won; the victim company's sales in Korea was 70 billion won to 307 billion won from around 200 billion won to December 2007; the victim company's sales in Korea was 70 billion won to 200 billion won to 300 billion won from 205 billion won to 307.

Examining such various circumstances in light of the legal principles as seen earlier, it is difficult to view that the shape of the product, such as the appearance, color, and protruding shape of the victim’s product, as well as the trademark of this case, acquired the well-knownness from November 2007 to January 2008, the date of the crime indicated in the facts charged.

Nevertheless, the court below determined that the victim company invested a large amount of expenses to inform the trademark of this case only on the basis of the victim company's business period, the number of business employees, advertisement facts, etc., which are insufficient to be the basis for acquiring well-knownness, and that the trademark of this case was recognized as a representative trademark in Korea at the time of the above crime, and found the defendant guilty of this part of the crime. The court below erred in the misapprehension of legal principles as to the well-knownness of the product mark under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment of the court below guilty is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Min Il-young (Presiding Justice)