2015Gahap549354 Action for the prohibition of unfair competition

1. H:

2. H Co., Ltd.

1. KimA

2. AB

May 4, 2016

June 1, 2016

1. The Defendants:

(a) not manufacture, sell, transfer, exhibit, import, or export each product marked in the Schedule 1;

B. A list of the Defendants’ factories, offices, stores, places of business, and warehouses, as shown in the attached Table 1.

Each product shall be discarded;

C. Co-ownership of the amount calculated by jointly paying 50,00,000 won to Plaintiff HW poppy, and 50,000,000 won to Plaintiff HH Korea-limited companies, as well as 15% per annum from August 26, 2015 to the day of complete payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Basic facts

A. Status of the parties

Plaintiff HH Tampre Cropian (hereinafter “Plaintiff H”) is a legal entity of the French Republic that produces and sells handbags, clothing, etc. in the trade name of “HES,” and Plaintiff HH Korea Limited Liability Company (hereinafter “Plaintiff H Korea”) sells the products produced by Plaintiff H Korea from 1997 to Korea.

Defendant KimA is operating the business of manufacturing and selling fashion-related products, such as handbags and clothes, using the trade name, "Design Corresponding Steis," and the brand, "Stenob", and Defendant OB is the representative of "Stemno-bab" store.

B. Products produced and sold by the Plaintiffs

Plaintiff H Korea has sold each product indicated in [Attachment 2] List produced by Plaintiff H in Korea (hereinafter “Plaintiff’s product”), and the product indicated in [Attachment 2 List No. 1] was called “Kel B Bag (Ye)” in the name of “Gelly Bag (Ye)” in the name of a photograph of the body that was pregnant with the product of Grace Kel Kelly with a large amount of marl with a rapid marm strest with a large number of mars that was a string, around 1956. The product marked in [Attachment 2 List No. 2] was called “Kel Bag (Yeag)” in the name of “Gelly Bag (Yeg) around 1984, which was a model of the United Kingdom.

Birkin Bagle (Blin), being manufactured for B, was called "Birin Birin Bagle (Blinkin margin)", and was called "Blin Birin Birin" (hereinafter referred to as "Blin margin").

C. Products produced and sold by the Defendants

Defendant KimA, as a handbag similar to the products of the Plaintiffs, produces and sells each product listed in the separate sheet No. 1 attached to the design (hereinafter referred to as the “ Defendants’ product”) that he created on the front of the design (hereinafter referred to as “the design of this case”), and Defendant OB sells the Defendants’ product from the above “Pranom store.”

【Ground of recognition】 Each entry, film, or pleading in Gap evidence Nos. 1, 2, 4 through 7, and 25 (including each number, if any; hereinafter the same shall apply)

2. The plaintiffs' claims

The Defendants’ act of manufacturing and selling the Defendants’ products of the same and similar forms as the form of Nickel and Blin bags, a mark of goods (Handbag) widely known in the Republic of Korea, constitutes an unfair competition under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act, which constitutes an act of causing confusion with the Plaintiffs’ products, or an act of impairing the distinctiveness or reputation of the Plaintiffs’ products, and constitutes an unfair competition under Article 2 subparag. 1(c) of the Unfair Competition Prevention and Trade Secret Protection Act. In addition, the Defendants’ above act constitutes an unfair competition under Article 2 subparag. 1(c) of the Unfair Competition Prevention Act, which constitutes an act of impairing the Plaintiffs’ economic interests by using the form of Nickel and Blin bags, which is the outcome of considerable investment or effort, for one’s own business without permission in a manner contrary to fair commercial practices or competition order.

3. Determination as to the assertion of unfair competition under Article 2 subparagraph 1 (A) of the Unfair Competition Prevention Act

A. Whether the form of the plaintiffs' products constitutes a product sign widely known in Korea

1) Applicable legal principles

As a matter of principle, the form of a product is allowed to be reproduced and produced unless it is protected by a design right or patent right. However, exceptionally, the discriminatory feature of a product by continuous, exclusive or continuous use for a long time, or continuous advertising advertising is considerably individual to the extent that it is a product with a specific quality for customers or users, and thus, its distinctive character of another product is limited to the case where it is clearly individual to the extent that it is a product with a specific quality for customers or users. In such a case, only because it constitutes "a mark indicating other person's product" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act and thus, it is protected under the same Act (Supreme Court Decision 201Da26488, May

10. 12. See, e.g., Supreme Court Decision 2001Da44925 Decided 12.

Whether a mark indicating another person's goods is widely known in Korea under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act is based on the period, method, pattern, quantity of use, scope of transaction, etc. and whether it is objectively widely known under the social norms (see Supreme Court Order 96Ma364, Feb. 5, 1997, etc.).

2) Determination in accordance with the above legal doctrine

Comprehensively taking account of the aforementioned evidence and the following circumstances acknowledged by the statements or images of Gap evidence Nos. 3, 11, 19, 20, Eul evidence Nos. 6, 7, 13, and 22, the forms of the plaintiffs' products are used continuously, exclusively, and exclusively for the plaintiffs' products over a long-term period, and thus, the discriminatory characteristics of the product form (the front part and the part, the knife and the body cover, the knife and the body cover, and the knife and the metal locking device are composed of a unique design characteristics) have become distinctive as the source of specific goods, and it is reasonable to view that the ordinary consumers obtained distinctiveness as the source of goods in Korea.

From around 1956, Kinkin her respective world became widely known since 1984, the characteristics of the unique design as seen above have been maintained.

○ The products of the Plaintiffs are produced in small quantities and maintained their quality by skilled figures at Plaintiff H’s mold 1). From among high-class Handbags, the products belong to the highest (not less than KRW 10 million for domestic consumers). Domestic celebbbbbbbbbbbbbbbbblings the products of the Plaintiffs, and they were published through various media (in those articles, the products of the Plaintiffs are also referred to as “Tinblg”, “Tin” and “Blkbin” (hereinafter referred to as “Tin”).

Despite the low prices of the plaintiffs' products, in order to purchase the plaintiffs' products in Korea, it is necessary to put the list of waitings into the list of waitings for more than one year. On January 201, 201, more than 30 Binkin Kinkinkins, which was supplied in commemoration of the Daegu store of the Hyundai department store, were sold all at once a day. Through a variety of mass media, the plaintiffs' products were introduced as "pins, etc., difficult to ask for money."

The Plaintiff H sells handbags, including the products of the Plaintiffs, through the 200 global direct management stores and other sales networks. Since 1997, Plaintiff H Korea began to sell handbags produced by Plaintiff H in the Republic of Korea, and then sells handbags, including the products of the Plaintiffs, at present, by installing new hotel, gallon department store (tension store), modern department store (main office, EXEX, Daegu store), new world department store (main office, Gangnam point, city office, city office, and Busan city office), and baging department store, and selling handbags, including the products of the Plaintiffs.

From 2007 to 2015, the plaintiffs' domestic sales amount is approximately KRW 3,12.2 billion ( approximately KRW 5.4 billion in 2015), and the domestic advertising expenses amount is approximately KRW 12.8 billion ( approximately KRW 2.2 billion in 2015).

○ The Defendants asserted that the forms of the Plaintiffs’ products are not exclusively and exclusively used by the Plaintiffs, on the grounds that other Handbag products identical and similar to the Plaintiffs’ products are sold in Korea and abroad. However, insofar as there is no proof that the forms of the Plaintiffs’ products (Evidence B No. 6, 7, 13, and 22) were released in Korea prior to being widely known in Korea, the Defendants’ aforementioned arguments are difficult to accept without need to further examine.

B. Whether the defendants' product form is likely to be confused with the plaintiffs' product mark in the same and similar manner as the plaintiffs' product mark

"Act that causes confusion with another person's goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act includes not only acts that cause confusion with the origin of goods but also acts that may cause confusion as well as acts that may cause confusion with the origin of goods. Whether it falls under such act is a competitive business due to the well-knownness of the product mark and the degree of distinctiveness, degree of similarity with the mark, degree of similarity with the mark, mode of use, similarity of goods

- Determination should be made by comprehensively taking account of the existence of concurrent relations, and the existence of the bad faith (use), etc. of the imitated person. Therefore, even if the buyer at that time did not confuse the origin of the goods because of specific circumstances at the time of sale, such as the quality and price of the goods, place of sale, sale method, advertisement, etc., if there is a concern for confusion as to the origin of the goods from a general consumer’s perspective, such as the acquisition of the goods by the buyer or the purchaser’s sale of the goods attached to the goods by the third party, etc., such act of using the goods mark or selling the goods using the goods mark constitutes “act that causes confusion as to the goods of another person” under Article 2 subparag. 1(a) of the Unfair Competition Prevention Act (see Supreme Court Decision 2011Do6797, Dec. 13, 2012, etc.).

2) Determination in accordance with the above legal doctrine

In full view of the aforementioned evidence and the following circumstances acknowledged by the statements or images of Gap evidence Nos. 12, 17, Eul evidence Nos. 1 through 5, 9, 10, and 24, the defendants' products are similar to the plaintiffs' products and their forms, but it is difficult to conclude that not only the buyers but also third parties may cause confusion as to the same source as the plaintiffs' products.

○ The Plaintiffs’ products and the Defendants’ products are of quality (the Plaintiffs’ products are natural leathers; the Defendants’ products are of 10 million won or more; the Defendants’ products are of 10-200,000 won or more); the place and method of sales (the Plaintiffs’ products are directly operated by department store masters, etc.; the Defendants’ products are of epiculation 2) or Rain shopping mall, etc.); and the prime customer floor (the Plaintiffs’ products are of fluorous design; the fluor’s fluor’s fluorial design; the Defendant’s products are of fluorous coloring with the luor design).

○ The Defendants’ products do not simply imitate the Plaintiffs’ products, but rather attach the instant design to the front, and used luminous materials with which the Plaintiffs’ products do not use. Such discrimination is similar to the Plaintiffs’ products, and is among the Defendants’ products.

It seems to be an identification mark or a purchase motive (the handbag on which the bill of this case sold by the Defendants is attached is disadvantageous to 'galkh', etc.).

○ The instant design attached to handbags and clothing products of the Defendants and the Defendants’ “sponnobs” appears to have considerable human guidance among young female members, who are primary customers through collaboration with TV broadcasting, domestic and foreign celebbbbbbbs, Internet blogs, and domestic lux cosmetics brand (hereinafter “Raz”).

○ The Plaintiffs support the intent of the Defendants to take advantage of the form of their products, and can be interpreted as having no intention to cause confusion on sources by openly revealing that the Defendants’ “Fake Fore Fun” was a maternity (fake) in the foregoing ske case.

○ The content of the Internet Blog (No. 12-1 through 19) cited as evidence of so-called “flogs” after the purchase by the Plaintiffs is difficult to deem that the Defendants’ products may be mistaken or confused as products manufactured by using a license from the Plaintiffs (the aforementioned Blogs are mainly emphasizing that the Defendants’ products are in a shot shape with the Plaintiffs’ products, and it is difficult to see the possibility of confusion further as mentioned).

C. Sub-committee

Therefore, this part of the plaintiffs' assertion that the defendants' products are likely to be confused with the same source as the plaintiffs' products is without merit.

4. Determination as to the assertion of unfair competition under Article 2 subparagraph 1 (c) of the Unfair Competition Prevention Act

A. Applicable legal principles

In light of the legislative intent and its legislative process of Article 2 subparag. 1(c) of the Unfair Competition Prevention Act, the term "it is widely known to the Republic of Korea" should be interpreted to mean "the degree of well-knownness to the general public," in addition to the relevant traders, beyond "the degree of well-knownness," which is widely known to the general public within a certain area or discharged from Korea or within a certain area. In addition, in order to reach "the degree of well-knownness", the discriminatory feature of the product type should be considerably individualized to the extent that it is the product of a specific source to the general public (see, e.g., Supreme Court Decisions 2004Do651, Jan. 26, 2006; 2010Da20444, Mar. 29, 2012).

B. Determination based on the above legal principles

However, as seen earlier, the forms of the plaintiffs' products are widely known as a product mark. However, in light of the aforementioned evidence and the following circumstances revealed by Gap evidence No. 23, i.e., ① the plaintiffs' products belong to the highest level from among high-class Handbags, and their demand level is extremely limited; ② the stores handling the plaintiffs' products in Korea are located only in Seoul, Busan, Daegu, and Jeju; ③ the annual production of the plaintiffs' products is 700 to 800, and thus, in order to purchase the plaintiffs' products in Korea, it should be listed in the list of atmospheres for more than one year (the plaintiff H Korea removed the motherer list even after securing the demand of VIP customers around 2013). In light of the above circumstances, the evidence submitted by the plaintiffs alone, it is difficult to find that there is no evidence to find that the forms of the plaintiffs' products are considerably different from the characteristics of the products to the general public to the extent that they are specific in terms of their source.

C. Sub-committee

Therefore, this part of the plaintiffs' assertion on the premise that the form of the plaintiffs' products falls under a well-known product mark is without merit without any need to further examine.

5. Determination as to the assertion of unfair competition under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act or tort under the Civil Act

A. Whether an act of unfair competition or a tort under the Civil Act is established

1) Applicable legal principles

An act of using the outcomes of considerable effort and investment by a competitor without permission for his/her own business in violation of business ethics or the order of fair competition, thereby gaining unjust profits by taking advantage of the competitor's efforts and investment and infringing on competitor's legal interests worth protecting (see, e.g., Supreme Court Order 2008Ma1541, Aug. 25, 2010).

On the other hand, Article 2 subparag. 1 (a) through (i) of the Unfair Competition Prevention Act only lists the types of acts stipulated in Article 2 subparag. 1 (a) through (i) as an unfair competition act, and there was a limit to not properly regulate the new and diverse types of unfair competition acts appearing due to social changes, etc. However, the amendment of Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act (hereinafter “other acts of infringing on other persons’ economic interests by using the outcomes, etc. made by considerable investment or effort for one’s own business without permission in a manner contrary to fair commercial practices or competition order. In light of such legislative intent, in determining whether the outcomes, etc. of the above Supreme Court Decision 208Ma1541, Aug. 25, 2010 should be added as one type of comprehensive unfair competition act, which is deemed to be a tort under the Civil Act. In light of the legislative intent, it is necessary to examine whether the outcomes, etc. of the use without permission, are in violation of the legal order or order of unfair competition.

2) In light of the circumstances described in the above legal doctrine as seen in the above 3. A. 2) above, the form of the plaintiffs' products constitutes "the outcome made by the plaintiffs' considerable investment or effort."

B) In light of the following circumstances revealed by the aforementioned evidence, the forms of the Plaintiffs’ products constitute “interest worthy of legal protection” because it is difficult to view the forms of the Plaintiffs’ products as belonging to the public domain.

- A small amount of products manufactured and purchased only by a small number of consumers is a key element that form the reputation, image, etc. of the product recognized from the form of the product and form its property value.

- The plaintiffs' products have unique design features that include the shape of the front side and the body cover, the knife and the body cover, the blife string and the metal materials locking device, etc. in the shape of the product. As seen earlier, the reputation and image of the products recognized from such discriminatory features are embodied in the products of the plaintiffs, which may stimulate consumers' desire to purchase. The forms of the products of the plaintiffs are the core elements that form the property value of the products of the plaintiffs (the same is more so in that trademark is attached only to the inside of the products of the plaintiffs).

- As long as the forms of the plaintiffs' products are core elements that form property value of the plaintiffs' products, legal protection should be given to them.

C) As seen earlier, the Defendants’ act of manufacturing and selling the forms of the Defendants’ products similar to the Plaintiffs’ products constitutes an act of using the Plaintiff’s products without permission for their own business without permission, and in light of the following circumstances revealed by the evidence as seen earlier, the aforementioned method of using the products without permission is deemed to be “an act contrary to fair commercial practices or competition order.”

- As seen earlier, the Defendants’ products are unlikely to be confused with the same source as the Plaintiffs’ products, and the instant design has a considerable seal, but the Defendants’ product obtained a human seal and sold the price of KRW 10 to 200,000,000, which is not sealed by the Plaintiff’s products, appears to have contributed significantly to the unique design features similar to the Plaintiff’s products (B. 2(b)) (i.e., the Defendants’ products were in the sales amount of the Defendants’ products recognized in (b).

- The Defendants’ intent may be inferred by using a pattern similar to the products of the Plaintiffs in the Fune Fun “Fun” used by the Defendants to take advantage of the form of the Plaintiffs’ products.

- As long as the Defendants are producing and selling goods identical to the Plaintiffs (Handbags) in Korea, they are competitors (in reality, there must be competition at an equal level in the market or a relationship of producing and selling goods directly replacing demand in the market, not constituting competitors).

- Ultimately, the Defendants’ act of using the product form of the Plaintiffs without permission is the Plaintiffs’ act.

The act of obtaining unjust profits by taking advantage of the outcomes made by considerable effort and investment, is an act of competing with the competitor in an unfair manner contrary to fair commercial practices or competition order.

3) Summary of the Defendants’ assertion

Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act is in a complementary position in relation to the same Item (a) through (i) of the same subparagraph and the Design Protection Act. The forms of the plaintiffs' products are possible to be subject to Article 2 subparag. 1 (a) and (c) of the Unfair Competition Prevention Act, but do not meet the protection requirements, and they are eligible to be protected under Article 2 subparag. 1 (i) and (c) of the Unfair Competition Prevention Act and the Design Protection Act. Thus, they cannot be subject to protection under Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act.

B) Determination:

① Article 2 subparag. 1 Item (a), (c), (i) Item (j), and (j) of the Unfair Competition Prevention Act are different from the requirements for protection, protection period, infringement requirements, etc. <2> The defendants' act of manufacturing and selling the products is similar to the type of the plaintiffs' product, but it is difficult to deem that there is possibility of confusion or confusion with the attachment of the design of this case, although it is similar to the type of the plaintiffs' product, it is difficult to fully regulate the products under Article 2 subparag. 1 Item (a), (c), (i) and (i) of the Unfair Competition Prevention Act and the Design Protection Act. <3> This is merely a legal blank, and Korea's legal system treats the forms of the plaintiffs' products as belonging to the public domain, and thus, it does not mean that the defendants' act of manufacturing and selling the products belongs to the new type of competition under Article 2 subparag. 1 Item (a) and (b) of the Unfair Competition Prevention Act.

B. Determination as to the defendants' duty 1) prohibition and disposal claim

As seen earlier, the Defendants’ act of manufacturing and selling the Defendants’ products constitutes an unfair competition act under Article 2 subparag. 1 (j) of the Unfair Competition Prevention Act or a tort under the Civil Act. Accordingly, under Article 4 of the Unfair Competition Prevention Act, the Defendants shall not manufacture, sell, transfer, exhibit, import, or export the Defendants’ products, and have the duty to discard the Defendants’ products kept and displayed in their factories, offices, stores, business offices, and warehouses.

2) The occurrence of liability for damages

As long as the Defendant’s products subject to the instant unfair competition act or tort by the Defendants are produced by Plaintiff H and Plaintiff H Korea are sold, it is presumed that the Defendants suffered business losses due to the instant unfair competition act or tort (see Supreme Court Decision 2006Da22722, Nov. 13, 2008, etc.).

B) In a case where a person whose business profit has been infringed due to an unfair competition act for calculating the amount of damages claims damages, if the infringer has received any profit from the infringement, the amount of such profit shall be presumed to be the amount of damages suffered by the person whose business profit has been infringed (Article 14-2(2) of the Unfair Competition Prevention Act). In addition, the court may recognize a reasonable amount of damages based on the overall purport of pleadings and the result of examination of evidence where it is extremely difficult to prove the fact necessary to determine the amount of damages in light of the nature of the pertinent fact, even though the loss was incurred in an unfair competition act or in a lawsuit related to a tort under the Civil Act. (See, e.g., Supreme Court Decisions 2002Da6951, Jun. 24,

Considering the above legal provisions and legal principles, the damages amount of the plaintiffs due to the unfair competitive act of this case or tort is calculated in accordance with the above legal principles, the evidence as mentioned above, and the following circumstances revealed by Gap evidence No. 24, and other circumstances indicated in the argument of this case, such as the plaintiffs and the defendants' competitive business relations, and the ratio of the design of this case to the defendants' products, it is reasonable to view that the defendants' damages amount of the plaintiffs due to the unfair competitive act of this case or tort exceeds 50 million won for each plaintiff.

○ From July 2014 to July 2015, 2015, the 'Design Pidio' operated by Defendant KimA.

12. The sales amount of up to 12.8,217,854,231 won, and the sales amount from June 5, 2015 to December 31, 2015 from June 31, 2015 to December 31, 2015 is KRW 1,188,372,100 (see each accompanying document of January 14, 2016, April 5, 2016), and the Defendants are manufacturing and selling the Defendants’ products until now (no supporting materials confirming sales during a period other than the calculation period).

○6.8% ( = 1,150, 680, 100 won: 1,188, 372, 100 won) of the Defendants’ products in the above sales amount of Defendant OB, and the data voluntarily expressed by Defendant KimA (e.g., May 2016).

24. Reference Materials) Even based on Defendant KimA’s sales amount, the percentage of the Defendants’ products in the sales amount reaches 2% in 2014 ( = 271, 485, 997 won: 282,007, and 497 won) and 65.1% in 2015 ( = 5,173, 217, 207: 7,935, 846, and 734 won). In light of the contents of media media articles, SNS, Internet blogs, etc. regarding the Defendants’ products, the majority of the Defendants’ products in the sales amount appears to have taken place.

○ Simple expense from 2011 to 2013 of 'Handbag and wall manufacturing business, bags and other protective cases manufacturing business' publicly notified by the Commissioner of the National Tax Service is 93.4% (standard income rate 6.6%) and thereafter simple expense rate (standard income rate) is the same.

○ The reputation of the Plaintiffs’ products due to the instant unfair competition or tort by the Defendants

The intangible damage, such as credit damage, is included in the "damage caused by infringement of business interests" under Article 5 of the Unfair Competition Prevention Act, which is irrelevant to the reduction of sales volume of the plaintiffs' products. It is determined that the high-class image, reputation, and credit of the plaintiffs' products constructed through strict quality control or considerable advertising expenses by the defendants.

C) Sub-determination

Therefore, according to the Plaintiffs’ claim as part of the claim, the Defendants jointly have a duty to pay to Plaintiff H 50,00,000 won, Plaintiff HH Korea 50,000,000 won, and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from August 26, 2015 to the date of full payment, which is the day following the last delivery of the copy of the instant complaint.

6. Conclusion

The plaintiffs' claims against the defendants shall be accepted in its entirety on the grounds of its reasoning, and it is so decided as per Disposition.

The presiding judge shall transfer the number of judges

Judges Kim Gin-man

Judge Cho Jae-han

1) French language referring to the working rooms of writers;

2) A store in which a variety of brand products are displayed together with a specific container b below the specific brand.

3) Subparagraph 1 (i) of Article 2 of the Unfair Competition Prevention Act

Type of goods manufactured by another person (referring to the shape, pattern, color, luminous or combination thereof, and a test product or a product presentation letter;

Transfer or lease of, display for, or import and export of, a good which imitates a good, including the form of the award; hereinafter the same shall apply)

(b) An act: Provided, That any of the following acts shall be excluded herefrom:

(1) Transfer or replacement of goods which imitate the form of the goods for which three years have passed since the form of the goods, such as manufacture of prototypes, has been kept.

(2) an act of being exhibited, imported or exported for such purpose;

(2) goods of the same kind as those produced by another person (if there is no like good, the like good and its function and effect are identical or greater).

(b) transfer, lease, display or display for this purpose any good which imitates the usual form of such good.

Admission/Exporting