(영문) 서울고등법원 2017.2.16. 선고 2016나2035091 판결

The Defendants shall not manufacture, sell, transfer, exhibit, import, or export the products indicated in the separate sheet No. 1. The Defendants shall discard the products indicated in the separate sheet No. 1 in the process of storage or display in their factories, offices, stores, places of business, and warehouses. The Defendants jointly pay to the Plaintiffs the amount of KRW 300,000,000 per annum from the day following the date of delivery of the copy of the instant complaint with respect to KRW 250,000,000,000 per annum from the day following the day of delivery of the copy of the instant complaint to the day of full payment (the Plaintiffs expanded the claim for damages in this court).

Purport of appeal

The same shall apply to the order.

Reasons

1. Quotation, etc. of the judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the court of first instance (excluding the part concerning “6. conclusion”) except for the modification of the pertinent part of the judgment of the court of first instance as follows 2. Thus, it is acceptable to accept it as it is in accordance with the main sentence of Article 4

2. Revised parts

(a) from 7 to 30 : (a) To 4 the following modifications are made:

Where the differentiated characteristics of a product by continuous, exclusive, or continuous use of a product for a long time or by continuous propaganda advertisement are clearly individualized to the extent that it is the product of a specific source with a specific quality for customers or users, the distinctive character of the other product may be restricted in addition to the "mark indicating that the product is a product of another person" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act. In such a case, protection under the same Act may be protected.

(b) revise “10 million won or more” under 5 below to “not less than 10 million won”.

(c)It is difficult to revise the following three paragraphs on the 6th page:

In addition, other bags (Nos. 18 through 21, No. 30-1) which appear to have been manufactured and sold prior to the release of the plaintiffs' products are deemed to have some similar aspects with the plaintiffs' products in their design, but their size, width and vertical ratio are different from the plaintiffs' products. Ultimately, this part of the defendants' assertion is without merit under the premise that other handbag products identical or similar to the plaintiffs' products are sold at home and abroad.

(d) revise “24 proof” below 7 to “24,28,32,41,42, 43”;

(e) revise the term “AA” with 8-11 brands “A” (hereinafter “AA”), “BA”, “AC”, “AD”, “AD”, “E-type manufacturer (hereinafter “AF”), etc.”

(f) 9.1 on the right side of the 9.0-way, inserting:

In addition, the plaintiffs' report on consumer recognition of the shape of household products (A. 43) is also used as evidence of 'after purchasing', but it is difficult to conclude that there is possibility of 'after purchasing' only the above evidence in light of the personal composition, research area, sample size, method of investigation, and the content of the survey (consembiance of credibility because it consists of a upper-class climatic semblity, so it is difficult to see that the plaintiffs' products are used as high-quality raw materials, such as high-quality raw materials, and so it is difficult to see that the plaintiffs' products are used as high-quality raw materials, such as high-quality raw materials, which are less than that of the plaintiffs' products, and that high-quality raw materials, such as high-quality raw materials, are considerably less likely to cause confusion or confusion between the plaintiffs' products at the time of using high-quality raw materials (the plaintiffs' products with high-quality raw materials, which are used as high-quality raw materials, and thus, are likely to cause confusion between the plaintiffs' products and other products.

(g) a modification to the following: 10 pages 12 to 17 pages 4:

“A. Relevant legal principles

1) Article 750 of the Civil Act provides that “Any person who causes damage to another person due to an intentional or negligent act shall be liable for damage.” In order to constitute a tort under Article 750 of the Civil Act, if a competitor’s interests worthy of legal protection are violated unlawfully, not limited to cases where his/her rights have been infringed, such as copyright, but where his/her rights have been infringed, as well as where his/her considerable effort and investment have been installed without permission in violation of business ethics or fair competition order, thereby gaining unjust profits by taking advantage of the competitor’s efforts and investment for his/her own business and thereby infringing on the competitor’s interests worthy of legal protection (see Supreme Court Order 2008Ma1541, Aug. 25, 2010; Supreme Court Order 2010Da200444, Mar. 29, 2012).

In addition, the purpose of the Unfair Competition Prevention Act is to maintain a sound trade order (Article 1), and there is a difference between the provision of the purpose and the individual provision of the unfair competition act each time when normative needs arise in rapidly changing transactions such as the previous one. Accordingly, the Unfair Competition Prevention Act amended by Act No. 11963 on July 30, 2013 (the Unfair Competition Prevention Act was enforced from January 31, 2014) is a supplementary provision for the unfair competition other than the unfair competition under Article 2 subparagraph 1 (a) through (i) of the Unfair Competition Prevention Act in order to respond appropriately to the new and diverse types of unfair competition acts that appear due to the change of technology, and thus, it is necessary to include the new type of unfair competition under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act as an alternative provision for the unfair competition under Article 2 subparagraph 1 (a) through (i) of the Unfair Competition Prevention Act, which newly provides for "an act infringing other person's economic interests for its own business without permission in a way contrary to fair commercial practice or competition order.

한편 특허법 등 지식재산권법은 타인의 투자나 노력으로 만들어진 성과를 이용하는 행위 중에서 타인의 지적 창작활동이나 영업상 신용에 편승하는 것을 방지하기 위하여 각종 지식재산권을 창설하고, 타인의 성과를 보호함과 아울러 그 한계를 설정하고 있다. 그러므로 그와 같은 지식재산권에 의한 보호의 대상이 되지 아니하는 타인의 성과를 이용하는 것은 본래 자유롭게 허용된다고 할 것이고(특히 저작권법에 있어 아이디어의 경우는 비록 그 아이디어가 독창적인 것이라고 하더라도 저작권법의 보호대상에 포함되지 아니하는 것으로서 누구나 이용 가능한 공공의 영역에 해당하는바, 이러한 점에서 해당 아이디어가 자연법칙을 이용한 기술적 사상이면서 신규성과 진보성 등 일정한 요건을 갖춘 경우 심사를 통해 아이디어 자체를 보호하는 특허법 및 당해 아이디어가 비공지성, 경제적 가치성, 비밀관리성 등의 요건을 갖추는 경우 영업비밀로서 보호하고 있는 부정경쟁방지법상의 영업비밀 보호제도와 차이가 있다), 또한 자유경쟁사회는 기업을 비롯한 모든 자의 경쟁참가기회에 대한 평등성 확보와 자기 행위의 결과에 대한 예측가능성(적법성의 한계에 대한 예측가능성을 의미한다)을 전제로 성립하는 것이므로 이와 같은 행위에 대한 법규범은 명확하여야 하고, 해석에 의하여 광범위한 법규범 창설기능이 있는 일반조항을 적용함에는 원칙적으로 신중하여야 한다. 더욱이 부정경쟁방지법 제15조는 특허법, 실용신안법, 디자인보호법, 상표법, 저작권법 등과의 관계에서 보충적인 지위에 있음을 분명히 하고 있으므로1) 부정경쟁방지법 제2조 제1호 (차)목은 위 지식재산권법에 모순·저촉되지 아니하는 한도 내에서만 지적 창작물을 보호할 수 있다.

Therefore, as seen above, since the use of another person’s outcomes that are not subject to protection by intellectual property rights is a matter of principle, a certain rationality should be recognized to regulate such use. In many cases, the illegality of using another person’s outcomes, i.e., the act of using another person’s outcomes, is unreasonable in light of the principle of securing fair and free competition among competition among competitors, which are common norms of the competition society. Therefore, even if one has property value, it is possible to freely imitate and use another person’s outcomes. However, in cases where “special circumstances,” which are not justified in light of fair trade order and free competition order in the performance and use of another person’s outcomes are not protected, it is reasonable to view that the use of another person’s outcomes may not be permitted if it is obviously unreasonable to create the intellectual outcomes or to lack incentives to those who acquired information with customer attraction, etc., by considering the following factors: (i) the act of using another person’s outcomes or the process of using them; (ii) the time and degree of using them to which one’s own outcomes can be seen as unfair competition or unfair practices, etc.

B. The judgment of this Court

1) Although the Defendants’ product manufacturing and selling acts fall under the category of acts under Article 2 subparag. 1(a) and (c) of the Unfair Competition Prevention Act, it falls under the case where the requirements for recognizing the Defendants’ product as an unfair competition act under each of the pertinent items are not satisfied. Furthermore, the Plaintiffs’ product did not meet the requirements for recognizing the Defendants’ product as an unfair competition act under Article 2 subparag. 1(i) of the Unfair Competition Prevention Act (K was manufactured around 1956 and around 1984; hereinafter the same as seen earlier) after three years from the date of its form. Accordingly, it is reasonable to view the Plaintiffs’ product type as an act of reproducing the Defendants’ product as an unfair competition act under Article 2 subparag. 1(i) of the Unfair Competition Prevention Act where the Defendants’ product form was made with “reasonable investment or effort.” Therefore, it is reasonable to apply the Unfair Competition Prevention Act only to exceptional cases where it is evident that the Defendants’ product form would create intellectual outcomes or obtain information about customers' attraction without protecting their use of the outcome.

2) In light of the circumstances described in the above 3. A. 2, it is reasonable to view that the forms of the Plaintiffs’ products constitute “the outcome made by the Plaintiffs’ considerable investment or effort.”

3) Meanwhile, as seen earlier, it is difficult to deny that the product of the Defendants is partially similar to the Plaintiffs’ product in its form. However, in light of the following facts and circumstances that can be acknowledged by comprehensively taking into account the entire purport of the pleadings in the entries of evidence Nos. 1 through 5, Nos. 10, 15, 16, 17, 26 through 29, 32, 37 through 42, 44 through 48, 52, and 53, the fact that the product of the Defendants’ product and the Defendants’ product are recognized as similarity in light of the fair trade order and free competition order, it is insufficient to conclude that the Defendants’ product manufacturing and selling act of the Defendants’ product constitutes a case where it is obvious that there is insufficient incentive to the Plaintiffs who created the product form unless protecting the Plaintiffs’ product form, and there is no other evidence to prove otherwise.

① Defendant C graduated from AH of the AG University in 2006, and participated in the defluoration show conducted by the AG University in the U.S. AI on February 2, 2007, and began the 'AJ' in the Republic of Korea in the same year, and began the 'AJ' in the same year. From 2007 to 2012, the 'AJ' was occupied and sold in the national V department stores, AK department stores, and S department stores, and acquired human resources from the celebs.

② From 2013, Defendant C had an interest in a fashion design, including a bank, out of the new design. In particular, since the income level or age was no longer available to anyone, Defendant C sought a product that remains in a deep sense of mind. Under this basic concept, Defendant C designed “N (N) with string off a man-made and cartoon playing in green season,” such as release on bail. “N” was 15 degrees of 15 degrees, and “N” was string out of the snow or vegetable vegetable vegetable brand, so that Defendant C could not think that the design of this case would have been using a vegetable design and vegetable vegetable vegetable vege with a vegetable design.” Defendant C was able to think that the design of this case would have been vegetable and vegetable vegetable vegetable.

③ According to the interview, etc. (No. 17-2, No. 32) about the establishment of the Defendant C’s brand, Defendant C created a brand of “G” based on the philosophy of design pursuing “the creation of a valuable creative work”. Furthermore, Defendant C, in the context of media and material delivery, should have the awareness of the fact that many people want to confirm their value through high-priced goods and lusive brand, not ‘consumption for us' but ‘the consumption for us' itself' and ‘value consumption', and discover less evaluated materials, and should have the awareness of the fact that they want to identify their value through ‘the consumption for us' and ‘the consumption for us'. Furthermore, Defendant C should have the right awareness of ‘the consumption for us' and ‘the consumption for us', not ‘the consumption for us' and ‘the consumption for us' and ‘the consumption for us'. Furthermore, Defendant C should have the meaning of ‘the consumption for us' and ‘the use for us', not ‘the use for us.

④ Defendant C produced products attached to the instant design, which are similar to the product type (see, e.g., the following photographs) after seeking the instant design that falls under the area of “pop-up sets” and “pop-up sets” and “pop-up sets,” mixed with various images, which are strings, such as “cop-up sets”, “pop-up sets” and “cop-up sets” under the aforementioned design philosophy and relief, and after having devised the instant design that falls under the area of “pop-up sets” and “pop-up sets”, the hats (Oxdd) 3), and the Gabbs produced products that are attached to the instant design, which are similar to the product type (see, e.g., the following photographs).

A person shall be appointed.

⑤ Since then, AMF, a U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S. U.S.-style pictures on the Defendants’ products on E.S. (SNS). Moreover, from the end of 2014, products, such as bags, clothing, etc. copied the instant design were also appearing.

④ From September 2014, Defendant C began to sell “G” products, including the Defendants, at AP, which was operated in AO, from September 2014 to September 4. On August 2015, Defendant C was selected as a partner for the event called “AR” from “AB’s brand,” which was a cosmetic company, and was also released in cooperation with AC and AE-type products using the instant design in order to launch the product (see, e.g., pictures).

A person shall be appointed.

7) On September 2014, Defendant C placed a variety of products, such as Titrts, cracks, caps, hacks, hand-on cases, Handblings, etc., as follows:

A person shall be appointed.

8. The Defendants’ products are sold in compilation stores. The products are displayed in such a way as emphasizing the characteristics of the instant design by piling up the products with the focus on the features of the design as follows. H stores opened on June 19, 2015 consist of H stores opened by the Defendants as the basic concept of the instant design.

A person shall be appointed.

9) The Italy brand 'AS' is a brand Anden, which aims to become a scarfy in the era through the key key called ‘scarfy' and ‘destructive sense'. In particular, it brings the form of ‘AU' that was launched in 1953 and ‘AV bank' that was launched in 1955 and ‘AV bank' that was launched in 1955. In addition, various media have introduced that the ‘Kitch Flah5' or ‘fun design' of the ‘AS design' has a tendency to enjoy consumption by consumers in the fashion industry. In addition, the defendants' products are self-convened with ‘affort design' or ‘affort design' that was launched in 1955.

In addition, the defendants' products are considered to be 'the strong characteristics that anyone can recognize the brand even though they are ‘Fun' and ‘the idea using the synthetic leathers', the idea made by saggles, and even though it is a chromatic design, it is considered to be 'the strong Anwee', and the defendant C was also selected as the 10th news of the AW Mira industry, and the future of the AX is also selected in Korea.

Furthermore, Defendant C’G’s brand (hereinafter “AY6”) participated in the “BA” EXPO by taking part in the domestic brand-making invitation to display and display the Defendants’ products in the “BA” EXPO, which is a place for the introduction of about 10 Korean brand-type in accordance with the latest rentals selected in French information company AZ, among the U.S. P. S. P. O. O., U.S. P., U.S. (hereinafter “BA”) around January 201, 201.

A person shall be appointed.

In addition, from September 10, 2016 to November 20, 2016, the defendants' brand "G" worked as an official sponsor of the "BE Design Complex", which was progress in the BD art gallery, and from the "BF" in the "BF," among the defendants' products, displayed Art World (Arwek) among the defendants' products. BG, the exhibition planning entity of the "BE Design Complex", includes the expression "BE design," which pursues mental satisfaction rather than material, and determined that the defendants' products co-ownership of such artistic cultural code, and that the defendants' brand "G" constitutes a cooperative suitable for the aforementioned exhibition.

In light of these facts, the defendants' products are also seen to enjoy a positive evaluation of their creativity, creative aesthetic and design philosophy from experts and consumers in domestic and overseas fashion industry as a "KIKO or punch design".

(10) The Defendants’ products are sold at various domestic and foreign lux stores, including AK department stores, BH, BI, etc., and, in particular, they are sold at 34 stores in 13 countries, including GJ, BK, etc., which have high recognition level.

1) In designing the products of the Defendants, Defendant C borrowed part of the form of the Plaintiffs’ products, but instead did not take the form of the Plaintiffs’ products without taking almost little creative elements, and rather added the instant design to most of the Defendants’ front parts of the products and added them with creative elements. Furthermore, as seen earlier, Defendant C’s brand, “G” attached to the Plaintiff’s product type, rather than the instant design, and “G” separated from the Plaintiff’s product type, “A”, “AC”, “AD”, and “AF” were in collaboration with the Defendant’s domestic and foreign famous brand, not the instant design. In light of the fact that the said brand was in the direction of emphasizing the instant design of the products, sales appearance design, and display of the products, etc., it appears that Defendant C’s purchase of the instant design and the Defendants’ brand’s own brand or its own brand, not the Defendants’ own brand or its own brand, seems to have been an important factor in the instant case’s creation and brand.

(12) In addition, as seen earlier, the Defendants’ products are different from the Plaintiffs’ products in terms of overall aesthetic sense by using a flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick, and it is difficult to deem that there is a possibility of mistake and confusion between the Plaintiffs’ products and the Defendants’ products. Therefore

(13) Meanwhile, there seems to be no circumstance that the Defendants mentioned the names of the Plaintiffs’ products, such as “E”, “E”, and “K,” in marketing on the Defendants’ products.

(14) Considering the creativity, originality and cultural value of the Defendants’ products as seen earlier, the Defendants’ active publicity, sale and marketing strategies, etc., it is difficult to readily conclude that the Defendants had the intent to take advantage of the Plaintiffs’ form of figures without permission. Rather, the Defendants appear to have been 'value consumption', 'reasonable and value creation', 'Fake AB', 'defensive goods', 'pop-up and pop-up works', 'op-up works' and 'pop-up works', 'all-out works', 'pop-up works', 'pop-up works', 'pop-up works', 'pop-up works', 'pop-up works', 'pop-up works', 'pop-up works', 'pop-up works', and 'pop-up works', 'pop-up works', 'pop-up works', 'pop-out works', etc.

4) Therefore, this part of the plaintiffs' assertion that the defendants' act of manufacturing and selling the defendants' products constitutes tort under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention Act or civil law is without merit.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants (including the part extended by the court) are without merit, and all of them are dismissed. Since the judgment of the first instance, which different conclusions, is unfair, the plaintiffs' claims against the defendants (including the part extended by the court) are dismissed.

Judges

Judge exhauster of the presiding judge

Judges Park Jae-woo

Judges Park Jong-tae

Note tin

1) Article 15 of the Unfair Competition Prevention Act (amended by Act No. 11963, Jul. 7, 2013) expanded the scope of application to the Copyright Act by expanding the relationship with intellectual property law, such as the Patent Act.

Article 15 (Relation with Other Acts)

(1) If any provision of Articles 2 through 6 and 18 (3) of the Patent Act, the Utility Model Act, the Design Protection Act, the Trademark Act, the Quality Control of Agricultural and Fishery Products Act, or the Copyright Act is inconsistent with those of the said

2) Rased laveing in length of the bones of reproduction is a verbal laveing, a distinctive feature of which has been worn in Europe since the 1640s, but has been worn in Europe for the first time in the late 1800s.

(iii)one of the mother and child types, in which the swelve part of which is swelves and liners;

4) A store that sells a variety of brand products together;

5) The term “Kitch” was Germany that means that any person can easily seek a value at a relatively low level with a strong and long range of driving in the past. However, it is used as a word referring to an item, which is unique and visible, such as a design that deviates from a general framework that is linked to the fash industry, a cartoon character, etc.

6) It is normally conducted in ‘B' and ‘BC' as a historical and global fashion exhibition held in Paris every year from 1994 in France.