PapPP Co., Ltd. (Attorney Lee Jae-min et al., Counsel for the defendant-appellant)

Royal Co., Ltd. (Attorney Song-soo, Counsel for the defendant-appellant)

July 23, 2014

1. The defendant shall pay to the plaintiff 5,00,000 won with the interest of 5% per annum from July 5, 2013 to September 4, 2014, and 20% per annum from September 5, 2014 to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/2 shall be borne by the Plaintiff, and 1/2 by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 20,000,100 won with 5% interest per annum from September 12, 2012 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The Plaintiff operates a shopping mall operated by the Internet ○○○○ (Internet Address 1 omitted), and the Defendant operates the same kind of shopping mall, “△△△△△ (Internet Address 2 omitted)”.

B. The Plaintiff searched and collected a photograph of a foreign master, who appears to be well displayed on his/her own product, on the Internet, and took pictures by having the Plaintiff wear the clothes product and take the same attitude as that of the overseas master on the pictures, and epicates the images by combining the face of the overseas master, and posted the synthetic image produced by this method on the Internet shopping mall.

C. From September 2012 to May 2014, the Defendant: (a) supplied products identical or similar to the Plaintiff’s products sold from around September 2012, and sold them; and (b) copied or copied 150 to 200 synthetic images posted on the Plaintiff’s Internet shopping mall; and (c) posted them on the Defendant’s Internet shopping mall.

[Grounds for Recognition: Each of the descriptions set forth in Evidence A Nos. 1 and 16-1, 2, 4, 9, 10, 14, and 15 (including each number), and the purport of the whole pleadings]

2. Determination:

(a) Liability for damages caused by imitateing images: Acknowledgement;

(1) An act of using the outcomes of considerable effort and investment made by a competitor without permission for one’s 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 worthy of legal protection, constitutes an act of unfair competition and constitutes a tort under the Civil Act, as an act of unfair competition (see Supreme Court Order 2008Ma1541, Aug. 25, 2010). Whether the legal interests of a competitor have been infringed should not be determined solely depending on whether the interests of a competitor have been infringed upon by the strict meaning prescribed by the law, such as copyright, etc., but rather, on the basis of whether all the circumstances, such as the relationship between the parties, the circumstances, period, frequency, method, and the result, are clearly unfair means established by the principle of fair and free competition.

(2) In the instant case, in light of all circumstances, the Plaintiff and the Defendant sold the same or similar clothes using the Internet set, and competing with each other, citing the same sales strategy emphasizing that the said goods are suitable for the image of a foreign scam, and the selection of an overseas scamscamscamscamscamscamscamscamscamscamscamscamscamscams in the sales of the products. In particular, in the sales strategy, in order to produce the image, the selection of an overseas scamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscams, in addition to the selection of an overseas scamscamscamscamscamscamscamscamscamscamscamscamscamscamscams, etc.

(3) Furthermore, taking into account the following circumstances and the fact that there are illegal elements in the business activities, such as not paying reasonable consideration to overseas well-known persons and using their pictures at will, etc., the amount of consolation money to be paid by the Defendant to the Plaintiff shall be set at KRW 5 million.

(b) Liability for damages caused by unfair discount sale: Illegal sale; and

Furthermore, the Plaintiff asserts that the Defendant had committed a tort of realizing the Plaintiff’s credit and reducing sales by selling at a discount as if it was the same product as that of the Plaintiff’s products. However, each of the descriptions or images of evidence Nos. 5, 6, and 13 (including each number) are insufficient to acknowledge the above assertion, and there is no other evidence to acknowledge it.

3. Conclusion

Therefore, the plaintiff's claim against the defendant is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Jong-man