In a case where: (a) Company A was widely known as a restaurant that sells a unit of a fly restaurant in the name of “flyng cafeteria”; (b) Company A sought a provisional injunction against Company B on the grounds that it used the trade name of “F.H.R. Dong Dong Dong Dong (F.R)” in the near area, and Company A sought a provisional injunction against Company B, the case holding that Company A has the right to prohibit Company B from mutually using the unit of a flyng Dong Dong Dong Dong Dong Dong Dong do.”

In a case where Company A was widely known as a restaurant selling a unit of a fly restaurant at the government of the Republic of Korea, and Company B filed a claim for provisional injunction against Company B on the grounds that Company B registered a service mark containing the phrase “F.H.R. flying a flying restaurant (F.R.),” and used it in its trade name, the case holding that Company A’s right to use the service mark “F.H. flying restaurant” used by Company A was protected by the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”), and the trademark mark “Flying flying restaurant” used by Company A was not similar due to the differences in the text and text, but can be called and conceptualized only by “flying restaurant”, and thus, Company B’s trade mark’s trade mark is similar to Party B’s trade mark, and thus, Company B’s right to use the service mark is not likely to be mistaken or confused with Company B’s trade name on the ground that it constitutes an abuse of flying trademark right.

Article 2 subparagraph 1 (b) and Article 15 of the Unfair Competition Prevention and Trade Secret Protection Act

Deng cafeteria Co., Ltd.

Debtor (Attorney Hu-ho et al., Counsel for the defendant-appellant)

1. The debtor shall not use the trade name "Dengly restaurant" for signboards, packages of goods and publicity advertisements for restaurant business.

2. The debtor shall set up a signboard, printed matter, and propaganda advertisement using a trade name “fly restaurant” and deliver it to the execution officer entrusted by the creditor.

An execution officer shall, in the case of the above, publicly notify the purport of the custody in a proper way.

3. When requested by the debtor, an execution officer shall delete the above trade names from the signboards, printed materials and publicity advertisements, and deliver such objects to the debtor.

4. Costs of the petition shall be borne by the debtor;

The same shall apply to the order.

1. Basic facts

According to the purport of the whole records and examinations, the following facts are substantiated.

A. From 1960 to 1960, non-applicant 1 sold silent at the package marb in the city of the government. On May 11, 1968, the non-applicant 1 began to sell foods, such as silent, by displaying the trade name “the marbly restaurant” on the trade name “the marbly restaurant” at the fly-dong (number 1 omitted) of the government-dong (hereinafter “the marbly restaurant”).

B. From the time the restaurant was started at the Deng cafeteria of this case, Nonparty 1 created and sold roasting, sa, etc., and saf, which was supplied by the U.S. military unit located in the city of Speaker. Since then, the safly, which was cooked as above, was called “a safin” by attaching “a unit” to “a unit” of the U.S. military unit, and the major sales safin safin safs of this case became a unit.

C. The Dengish restaurant operated by the Nonparty 1 had a considerable seal on a restaurant with a fly unit in the City of the Government, which is a well-fly unit, and thereafter, a number of other incidental restaurants in the alley where the fly unit restaurant of this case is located were opened and the fly unit restaurant was called the “fly unit of the Government” by people.

D. D. The Dengish cafeteria was written by Nonparty 2 on May 12, 200 on the “1300 food name of the Republic of Korea” and was written by the Defendant as a substantive assistance house of the “government unit”. From September 2, 2002 to September 3, 2002, a cartoon, which was written by Nonparty 3, was introduced as a well-known incidental restaurant of the government in the work of “micker” and was widely known in the Republic of Korea.

E. The Dengish cafeteria was subsequently introduced on January 13, 2003, 2003, KSBS “S,” MabC on January 24, 2004, MaBS “TV slicking Pound,” S SBS on August 17, 2009, 201, KSBS 24 August 24, 2010, KSBS 201, and 30 May 30, 2012, respectively, to a designated restaurant of each of the instant broadcast markets, each of the instant 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 20-day 10-day 20-day 201-day 30-day 20-day 21.

F. On July 9, 2007, Nonparty 1 filed an application with the Commissioner of the Korean Intellectual Property Office for the registration of the attached Table 1 as a service mark. The decision was rendered on May 13, 2008 on the ground that the content of the service mark constitutes a service mark that does not constitute a service mark that does not enable consumers to identify whose business the service is indicated because it is an ordinary name, “Olyng” or “cafeteria.”

G. On June 9, 2009, Nonparty 1 established a creditor on the trade name, i.e., a “corporation de facto restaurant,” which was widely known in the vicinity of the Government, etc., and was operated by a creditor of this case since its establishment, by taking over the business of the de facto restaurant from the time of its establishment to the present day.

H. From around 200 to 200, the debtor operated the incidental restaurant in the name of the Do government-dong (number 2 omitted, hereinafter “the debtor restaurant of this case”) of the Do government-dong (number 2 omitted, and where approximately 70 meters away from the Do government-dong (hereinafter “the debtor restaurant of this case”). A creditor tried to develop a plan to purchase the land of the debtor restaurant of this case and build a new building on March 30, 2012 on the ground that the building of the Do government-dong restaurant of this case was under way, on the ground that the building of the Do government-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong Do-dong was located at approximately 70 meters.”

(i) Around July 2012, the debtor: (a) installed a signboard on the part of the Defendant’s restaurant in this case by dividing the signboard into a signboard “originally damaged restaurant”; and (b) entered the wall into the wall “originally damaged restaurant”; (c) on August 6, 2012, the government market issued a corrective order to use the trade name it reported on the actual change on the signboard, etc.; and (d) changed the signboard into a signboard on the part of the debtor’s headquarters “the head office of the original fly damaged fly factory” (However, the size of the “fly damaged fly fly urine” of the newly installed signboard is relatively smaller than the size of the “fly urine” restaurant; and (d) the wall and the entrance are still marked “F.H.R.” on the wall and the entrance.

(j) On the other hand, on November 6, 2008, the debtor filed an application with the Commissioner of the Korean Intellectual Property Office for the attached table Nos. 2 (hereinafter “instant service mark”) as 67 cases, including the 67 simple restaurant business under the Trademark Act, and on November 6, 2009, the instant service mark was registered in the service mark register.

2. The assertion and judgment

A. The assertion

A creditor asserts that even though a creditor has been aware of the fact that he had been engaged in a business selling a flying restaurant in the name of a "flying restaurant" for a considerable period of time, the creditor used the trade name of "flying restaurant" for a wrongful purpose that makes the above people confused with another person, and thus, the creditor sought a provisional disposition of this case.

B. Determination

(1) Subparagraph 1 (b) of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) provides that “the act of causing confusion with another person’s business facilities or activities by using signs identical or similar to the name, trade name, or other mark widely known in the Republic of Korea as one of the unfair competition acts.” Here, “a mark indicating another person’s business” refers to a case where traders or consumers widely recognize a specific business from other businesses within the scope of domestic discharge or within a specific scope, and thus, whether it constitutes “a mark indicating another person’s business widely known in the Republic of Korea” includes a mark indicating another person’s business, such as the period, method, pattern, quantity of use, scope of trade, etc. of the mark and whether it is closely known to the general public in terms of social norms, and whether it constitutes “the act of causing confusion with other person’s business activities” under Article 2 subparag. 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act (see Supreme Court Decisions 2003Do5837, Jul. 9, 2004; 2000.

(2) The following circumstances recognized by the above basic facts and the purport of the entire examination are as follows: ① It appears that the name “fly restaurant” used by a creditor is derived from the sale of silents in the previous packing machine. Generally, a restaurant that sells a unit 1) is considerably exceptional, and a restaurant that marks one name on the common name of a fly factory. ② fly, a fly factory is widely known throughout the country. It is difficult to find that the fly factory was introduced into a fly-known book or a fly-known local fly-known daily work, and it is difficult to view that the fly-used restaurant was a new fly-owned restaurant and a new fly-used restaurant as an obligor’s new fly-owned business registration certificate, and thus, it is difficult to view that the fly-owned restaurant and the fly-owned restaurant were a new fly-owned one with a new fly-style “fly-owned unit,” a new fly-owned consumer fly-style, and a new fly-style.

(A) It is reasonable to view that a “sule restaurant” used by a creditor is well-known among customers who use a military unit restaurant in the City/Do and its neighboring Si/Gun. Thus, the mutual trademark of “sulfly restaurant” was a trademark protected under the Unfair Competition Prevention Act.

(B) The name of the debtor's trade name used on a signboard, etc., "F.H.R. Dong-si Dong-si (F.H., R.)" and "Dong-si Dong-si", a creditor's trade name, is not similar due to the difference in the English language and the number of characters. However, since the trademark, such as the trade name, etc. used by the debtor can be briefly called and conceptualized only by "Dong-si Dong" as mentioned above, it is reasonable to deem that the trademark of each of the creditors and the debtor's trade names is similar in light of the identity of the above name and concept. If each of the above trade marks is used as a business mark in the restaurant Dong-si Dong

In addition, it is also recognized that the debtor uses the above trade name, etc. as business marks, etc. as above, causing confusion and misunderstanding among customers by stating only the "flying restaurant" in a large manner.

(C) Therefore, a creditor has the right to prohibit a debtor from using the trade name "Olyng cafeteria" pursuant to Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act, and even though the creditor requested the debtor to use the trade name "Olyng cafeteria," the creditor continues to use the trade name "Olyng cafeteria," the debtor operates a supplementary package restaurant in the "Olyng Dong Dong" which is a neighboring part of the Olyng cafeteria. Therefore, the necessity to seek a provisional disposition of this case is also recognized.

C. The debtor's assertion and judgment

(1) The debtor asserts that the "Olyng cafeteria" is a combination of the "Olyng" and the "Olyng cafeteria", which is a common master, and thus cannot be deemed as a trade name with a sense of spang.

However, Article 2 subparagraph 1 (b) of the Unfair Competition Prevention Act provides that "the act of causing confusion with another person's business facilities or activities by using signs identical or similar to the name, trade name, or emblem of another person widely known in the Republic of Korea as one of the unfair competition acts." Here, a mark indicating another person's business which is widely known in the Republic of Korea refers to the case where customers or consumers distinguish and widely recognize a specific person's business from other businesses within domestic service or within a specific scope. It does not include mere expression or ordinary terms used in ordinary sense. However, even in such a case, if it is widely recognized as expressing a specific business by using it for a long time, it constitutes a business mark protected by the above law (see Supreme Court Decision 96Do2650, Dec. 12, 1997). Further, since it is merely a combination of common name and thus it is not appropriate for the general consumers to recognize that it is a specific person's own business, and it is not appropriate for the majority of the government to recognize it as a specific person's business operator's or a specific person's neighboring restaurant.

(2) The debtor asserts to the effect that the trademark attached to the debtor's signboard, wall glass, etc. is not an unfair competition act under the Unfair Competition Prevention Act because the service mark of this case registered under the Trademark Act is legitimate use.

On the other hand, Article 15 of the Unfair Competition Prevention Act provides that if the provisions are different from those of the Patent Act, the Utility Model Act, the Design Protection Act, the Trademark Act, the Agricultural Products Quality Control Act, or the Fishery Products Quality Control Act, Article 2 through 6, and Article 18 (3) of the same Act, the service mark of the obligor is registered as a service mark under the Trademark Act. However, if the provisions of Article 15 of the Unfair Competition Prevention Act are different from those of the Trademark Act, etc., it is merely that the provision of the Unfair Competition Prevention Act is applied. Thus, even if the right is protected under other Acts, such as the Trademark Act, etc., the Unfair Competition Prevention Act can be applied to the extent that it does not conflict with the Unfair Competition Prevention Act, and the trademark of another person widely used in the Republic of Korea is not the purpose of distinguishing one's goods from those of other enterprisers, and it is still 90 or 18 (3) of the Trademark Act's application for trademark registration for the purpose of causing confusion with another person's business facilities or interests, it is 90.

In light of the above legal principles, ① a restaurant, which is a de facto restaurant used by a creditor, is derived from the trade name where the creditor continues to use it from around May 1968, and it was used. It is generally exceptional that a restaurant, which marks the general name of a de facto factory at a restaurant that sells a fly unit, is generally used, and ② a fly restaurant is introduced into a book or daily newspaper, and multiple times of the program of a de facto broadcasting company, it seems that the debtor had considerable knowledge of the fact that the fly unit of this case was not used by the creditor of this case, and the fly factory and the fly factory of this case were not used by the creditor of this case. The debtor would not be deemed to have had considerable knowledge of the fact that the fly unit of this case had been used by the creditor of this case. ③ The flying restaurant and the fly factory of this case, which had been used by the creditor of this case, and that the fly unit of this case had been used by the defendant of this case.

3. Conclusion

Therefore, the application of this case shall be accepted for the reasons and it shall be decided as per the Disposition.

[Attachment 1]: omitted

[Attachment 2]: omitted

Judges Yang Jin-jin (Presiding Judge)

1) The term referring to the word referring to the word "cryp" similar to the word "cryp" among Japanese food.

Note 2) Since the term “cafeteria” is a common name referring to a restaurant, it cannot be viewed as a business mark indicating any restaurant.