2015No126 Violation of the Unfair Competition Prevention and Trade Secret Protection Act

A (60 years, South Korea), Kwikset Service

Prosecutor

Lee Jin-jin (Court Prosecution) and Kim Un-young (Court Decision)

Attorney Gangwon-do et al. (Korean Office Election)

Ulsan District Court Decision 2014 High Court Decision 578 Decided January 16, 2015

May 22, 2015

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

A. The victim's trade name cannot be deemed to be a non-distinctive mark. Even if a non-distinctive mark is a non-distinctive mark, if the trade name of a specific person becomes widely known and recognized as the trade name, it constitutes "a mark indicating another person's business" under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act").

B. Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act was widely known within the country. The meaning of "Kwikset service company" does not require that all people be known to the country throughout the country, but it is sufficient to inform customers or consumers of the fact within a certain area. Generally, Kwikset service company is operating a Si/Gun adjacent to a Metropolitan City or Metropolitan City, etc., and competition in Kwikset service business should be considered to take place within the Metropolitan City. Therefore, in this case, it should be determined whether the "B Kwikset service" was widely known to the general public as the victim's business mark, such as "B Kwikset service company," which was widely known to the victim's business mark from July 28, 2006 to "B Kwikset service company," which was similar to "B Kwikset service company," which was widely used for the victim's trade name in the region where "Kwikset service was located within the middle of July 24, 2013.

C. In addition, considering the following facts: ① the Defendant used the trade name similar to the Victim’s Trade Name B Kwikset service, ② the Defendant’s trade name is similar to the Victim’s trade name, and ② the Defendant’s trade name is highly likely to be mistaken for marking the same business as one another; ③ the Defendant, in addition to the trade name, allowed the employees of the Victim’s Association to use uniforms and stokes similar to those used by the employees of the Victim’s Association, the Defendant’s act constitutes “act of causing confusion with other’s business facilities or activities” under Article 2 subparag. 1(b) of the Unfair Competition Prevention Act.

D. Therefore, although the defendant's act constitutes a violation of the Unfair Competition Prevention Act, the court below erred by misapprehending the legal principles on the facts charged in this case, which affected the conclusion of the judgment.

2. Summary of the facts charged

On May 24, 2013, the Defendant established and operated Kwikset Co., Ltd. with the principal office of Ulsan-gu Kwikset as its principal office and mainly for Kwikset service business.

피해자 김○○은 2006 . 7 . 28 . 경부터 울산 시내 일원에서 ' B퀵서비스 ' 라는 상호로 퀵 서비스업체를 운영하여 왔는데 , 위 업체는 7년 동안 울산 시내 일원에서 운행 중인 택 시에 부착한 광고와 인터넷 사이트 블로그를 이용한 홍보를 통해 그 인지도가 상당히 높은 곳으로 전화번호 ' 000 - XXXX ' 를 사용하며 , ' B퀵 000 - XXXX ' 이 기재된 파란색 조끼를 입은 종업원들이 ' B퀵 000 - XXXX ' 이 기재된 파란색 천의 화물칸이 설치된 오 토바이를 사용해 영업해 왔다 .

피고인은 2013 . 5 . 24 . 경부터 위 주식회사 B퀵 사무실에서 , 전화번호 ' # # # - XXXX ' 을 사용하면서 파란색 조끼를 입은 종업원들로 하여금 ' ( 주 ) B퀵 # # # - XXXX ' 이 기재된 파란색 천의 화물칸이 설치된 오토바이를 사용하는 등 국내에 널리 인식된 피해자의 상호와 유사한 것을 사용하여 울산 시내 일원에서 물건 배송 영업을 함으로써 피해자 의 영업상 활동과 혼동하게 하는 부정경쟁행위를 하였다 .

3. The judgment of the court below

In full view of the following facts: ① the part of the victim’s trade name, “B Kwikset service” consists of a common master’s name with no distinctive character; ② the part of “Kwikset” is merely a common master’s name and thus has no distinctive character; ③ the part of “B” is about the amount of use of the service; ④ the trade name of “B Kwik” is also a non-distinctive or weak; ④ the trade name of “B Kwik service,” which is the victim’s business mark, is used as the trade name of the large number of Kwikset service companies located in Daegu and Busan, and thus, it is difficult for the victim to readily conclude that “B Kwi service,” which is the victim’s business mark, has a low distinctive character as a combination of letters. From May 15, 2006, Kwikset used the service business mark called “B service,” which has been widely known to the victim and thus, it is difficult for the public prosecutor to find the Defendant not guilty of the sales amount of the victim.

4. Judgment of the court below

A. Relevant legal principles

Article 2 subparag. 1 (b) of the Unfair Competition Prevention Act refers to an act of causing confusion with another person's business facilities or activities by using a mark identical or similar to another person's name, trade name, or other mark indicating another person's business (hereinafter referred to as "business mark"). Whether another person's business mark is widely known in the Republic of Korea is based on the period of use, method, pattern, quantity of use, scope of business, and the circumstances of the business, and whether it is objectively known under the social norms. However, if a business mark consisting of a combination of letters or numbers that have no or weak distinctiveness and thus becomes widely known in the Republic of Korea, the standard should be strictly interpreted and applied. Thus, if such business mark becomes widely known in the Republic of Korea, its standard should be strictly interpreted. Thus, it cannot be presumed that such business mark has been advertised and advertised to a certain extent, and it should also be clearly recognized that part of the trademark itself has been considerably recognizable among the demand for the business mark. This legal doctrine applies to 200 parts of the judgment.

(b) Markets:

(1) According to the circumstances stated by the court below, the trade name "Kwikset Service" used by the victim is a trade name consisting of a combination of ordinary masters with no or weak distinctiveness, and is merely a mark that can be used by anyone. Thus, in order to punish the victim as a violation of the Unfair Competition Prevention Act and grant the victim exclusive right to the above business mark, the standard should be interpreted and applied more strictly than ordinary cases.

(2) According to the evidence submitted by the prosecutor, it is insufficient to recognize that the victim used B Kwikset service for about seven years until the time of the instant case, and that there was no Kwikset service company using the trade name of B until February 4, 2010, "91B", and until February 4, 2010, there was no Kwikset service company using the trade name of "B" in the Ulsanan area. It is recognized that the victim has promoted B Kwik service in the Ulsanan area by utilizing taxi or Internet B, but the fact that the victim has promoted and advertised the trade name to a certain extent is insufficient to recognize that there was a significant recognition among consumers in Ulsan area 3) as the victim's business mark, and there is no other evidence to acknowledge it otherwise. Accordingly, there is no error of law in the misapprehension of legal principles as otherwise alleged in the judgment below, which affected the conclusion of the judgment.

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is decided as per Disposition by the decision of dismissal pursuant to Article 364 (4) of the Criminal Procedure Act.

The number of judges in the presiding judge

Judges Choi Jae-won

Judges Choi Min-young

1) Notwithstanding the fact that the prosecutor’s determination of whether it is widely known in the Republic of Korea should be based on the Ulsan area, the lower court,

Although it is alleged to the effect that the determination was made for example in Daegu or Busan area, the court below held that "whether it is widely known in the Republic of Korea"

In determining whether "Bwikset Service" is a distinctive trademark, not for example in Daegu or Busan, but for example, the victim's mutual name.

one of the grounds for the determination of the Department is the trade name named B Kwikset's words in Busan and Daegu areas.

Since the court below's decision is just because it stated that it is reasonable.

2) The above '911B Kwikset Services' and 'Makset Services' were merged and operated by the Defendant, 'Kwikset Co., Ltd.'.

3) The meaning of "a mark indicating others' goods was widely known in Korea" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act is domestically discharged.

to be known to all persons, but to be known among the traders or consumers within a given area in the Republic of Korea.

The degree of truth is sufficient (see Supreme Court Decision 2000Da4487 decided April 10, 2001, Supreme Court Decision 2010Do6187 decided May 9, 201, etc.).