[1] Whether 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 obtaining unjust profits by taking advantage of the competitor's efforts and investment, and infringing on the competitor's interests legally worthy of protection, constitutes a tort under the Civil Act as an act of unfair competition (affirmative), and the case where a claim for prohibition or prevention of such a tort may be filed

[2] In a case where Company A provided an advertising system program using the Internet site and provided such program to the Internet users visiting the Internet portal site operated by Company B, the case affirming the order of the court below holding that the above advertising act by Company A constitutes a tort under the Civil Act as an unfair competition act, and it constitutes a tort under the Civil Act, and that Company B clearly explained the right to claim the prohibition or prevention of advertising act using the above program and the need for preservation

[1] An act of using the outcome 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 the competitor's legal interests worth protecting the competitor's legal protection, which constitutes a tort under the Civil Act, as an act of unfair competition. If it is difficult to expect the effectiveness of remedy by continuing the use without permission or ordering monetary compensation, and it is more likely to demand the victim's interest when compared and comparing the victim's interest protected by the prohibition of unauthorized use with the disadvantage of the perpetrator, a claim for prohibition or prevention of such act may be filed.

[2] In a case where Company A provided an advertising system program using the Internet site to Internet users, and the Internet users who installed such program visit the Internet portal site operated by Company B, the case affirming the order of the court below holding that Company A's above advertising act will not only use the credit and customer attraction manpower held by the above Internet portal site without permission, but also constitutes a tort under the Civil Act as an illegal competition where Company B's advertising business profit should be avoided without permission, and it is not a single one, but also continuous repetition of the above advertising act, and it is difficult to expect the effectiveness of remedy for Company A's company A's above advertising act to prohibit the above advertising act, and the interests protected by Company B are greater than losses to Company A's freedom of business, and thus, the claim against Company A for prohibition or prevention of the above advertising act in the Internet users' monitoring connected to the above Internet portal site was filed.

[1] Article 750 of the Civil Act, Article 300 (2) of the Civil Execution Act / [2] Article 750 of the Civil Act, Article 300 (2) of the Civil Execution Act

UNN Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for the defendant-appellant)

NAP Co., Ltd. (Law Firm White, Attorney Kim Jae-chul, Counsel for the plaintiff-appellant)

Seoul High Court Order 2008Ra618 dated September 23, 2008

All reappeals are dismissed. The costs of reappeals are borne by each party.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the expiration of the period for reappeal).

1. Judgment as to the debtor's grounds for reappeal

A. As to the assertion that the right to be preserved has not been vindicated

(1) An act of using the outcome 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 the competitor's legal interests worth protecting the competitor's legal protection, is an act of unfair competition and constitutes a tort under the Civil Act. If it is difficult to expect the effectiveness of remedy by continuing the use without permission and ordering monetary compensation, and if the victim's interest is greater than the victim's interest when compared and comparing the victim's interest protected by the prohibition of unauthorized use with the disadvantage of the perpetrator, it may claim prohibition or prevention of such act.

(2) We examine the above legal principles and records.

(A) According to the facts duly admitted by the court below, the creditor has established a "Naber" (the domain name is w.naver.com, hereinafter "Naber") which is the most domestic Internet portal site that provides various services, such as information search, community, entertainment, etc. through considerable effort and investment for a long time, and let Internet users visit the server for the use of the above service, etc., and is operating an advertisement business through the method of exposing the source advertising or providing the secured visitors with the priority search result. Thus, the creditor's profit from such advertising business through the Naber is a benefit worthy of legal protection.

In addition, according to the facts duly admitted by the court below, if Internet users who installed the program of this case offered by the obligor visit NAV, they appear on the screen in the same size as the obligee's advertising instead of the obligee's advertising (so-called "alternative advertising method"), or if the obligor's advertising is displayed in the margin of the screen (so-called "so-called white advertising method"), or if the obligor's advertising is entered into the search window located at the top of the screen as a result of the search and the obligee's key advertising (so-called "key inserted advertising method"), etc., the obligor's advertising is replaced or inserted in the form of substitution or inserting.

However, such advertising by the obligor appears when Internet users visit NAV to use the services, etc. provided by NAV, which eventually leads to the use of the credit and customer attraction manpower held by NAV without permission. In addition, such advertising methods also use both the advertisements provided by NAV and the search results provided by the obligee (alternative advertising method) and then use the methods such as (KIKO inserted advertising method) making all the advertisements offered by the obligee disappear, or keeping the obligee fast behind the order of search results provided by the obligee, thereby hindering the obligee’s business and blocking the obligee’s business without permission.

The obligor’s above advertising act is an act of unfair competition that infringes on the obligee’s advertising business interest through NAV, which is a benefit worthy of legal protection, and thus constitutes a tort under the Civil Act, by using NAV, which is established by the obligee’s considerable effort and investment, for one’s own business in violation of business ethics or fair competition order.

(B) Meanwhile, according to the facts duly admitted by the court below, Internet users who installed the instant program are continuously repeated whenever they access NA. Furthermore, given the nature of the advertising act by the instant program, it seems very difficult for creditors to grasp and respond to the current status of the installation of the instant program by Internet users and the current status of the obligor’s advertisement in NAV as a result, etc., and according to the obligor’s content, it would be likely that the obligor’s act of ordering monetary compensation would damage intangible values, such as the obligee’s credit and reputation, etc. In addition, in a case where the obligor’s act of advertising in NAV is neglected as it is, it is difficult to expect the effectiveness of the obligee’s relief by itself. Furthermore, inasmuch as the obligor’s act of advertising in this case may threaten the obligee’s existence of the company using the instant program as its profit model, the obligee’s interest protected by the obligor’s act of prohibiting the act of advertising in this case is greater than loss to the obligor’s freedom of business due to the obligor’s use of the Internet or Internet monitoring.

(C) Ultimately, the application for provisional disposition of this case is deemed to have been substantiated by the preserved right.

(3) Therefore, while the lower court’s explanation of the reasoning as to this part is somewhat insufficient or inappropriate, the conclusion that the right to preserve the provisional disposition of this case was substantiated is legitimate, and there is no error affecting the conclusion of the decision.

B. As to the assertion that the need for preservation has not been vindicated

Whether a provisional disposition to determine a temporary position under Article 300(2) of the Civil Execution Act is necessary shall be determined on a combined basis at the court’s discretion, taking into account the interests and loss of both parties following the acceptance of the application for provisional disposition in question, the presumption of future success and failure in the lawsuit on the merits, and other circumstances (see Supreme Court Decision 2006Da29983, Nov. 23, 2006, etc.).

In light of the above legal principles and the records, the obligor asserted the legitimacy of the act of advertisement by the program of this case and expressed his intent to continue the advertisement business. In this case, in light of the process and form of the act of advertisement by the program of this case, it seems that the obligee would have suffered significant damage in light of the above process and form, and as seen earlier, the obligee's interest protected by the application of provisional disposition of this case exceeds the obligor's loss, there is a need to preserve the application of provisional disposition of this case.

Therefore, the decision of the court below that the necessity of preservation is recognized as stated in its holding is just, and there is no error in the misapprehension of legal principles as to the necessity of preservation.

2. Judgment as to the creditor's grounds of reappeal

A. As to the first and second grounds for reappeal

In light of the records, the HTL code, which claims that the creditor was infringed on his/her right of integrity as his/her computer program work, contains the text portion indicating the result of the search and the general HTL attitude to indicate it on the screen, and contains any creative expression that can be protected by copyright. Furthermore, the HTL file sent by the creditor to the user’s computer is reproduced temporarily in the screen for the purpose of showing its contents on the screen. In this case, there is room for separate existence of the creditor’s HTL code without affecting the obligee’s HTL code itself, while it is not sufficient for the obligee to prove that the obligee’s right of integrity was infringed by the obligee’s advertisement code.

Although the lower court’s explanation of this part of its reasoning is somewhat inappropriate, the conclusion that the creditor’s right to maintain integrity was not infringed on the creditor’s computer program work is legitimate, and there is no error affecting the decision.

B. As to the third ground for reappeal

According to the reasoning of the order of the court below, Article 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) provides that “No person shall deliver or spread a program (malicious program) that may damage, destroy, alter, forge, or interfere with the operation of an information and communications system, data, program, etc. without justifiable grounds.” The program of this case is operated only within the computer of the relevant user with the explicit consent of the Internet user. Even if the program of this case is implemented, the content itself of the relevant site where the obligor’s advertisement appears does not cause any change and does not affect the relevant site’s operation, and the user who does not want to use the program of this case may temporarily or permanently delete it. In light of all the circumstances explained in the records, the court below determined that it is difficult to conclude that the program of this case is a malicious program that damages, destroys, alters, alters, forges, or forges an information and communications system, data, program, etc., or its operation without justifiable grounds.

In light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to malicious programs under Article 48 (2) of the Information and Communications Network Act.

C. As to the fourth ground for reappeal

According to the reasoning of the order of the court below, the court below determined to the effect that the program of this case is not unfair and its purpose can be operated in a lawful manner, including the case where the Internet site operator consented to the operation of the program of this case, and that the debtor's business using the program of this case seems to be an initial stage until now, and that in order to prevent the creditor's business damage caused by the program of this case, the court below determined to the effect that, in order to prevent the creditor's business damage from the program of this case, the debtor can sufficiently achieve its purpose, and further, it is not necessary to prohibit the production, use, etc. of the program of this case.

In light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the scope of provisional disposition as otherwise alleged in the grounds for reappeal.

3. Conclusion

Therefore, all reappeals are dismissed, and the costs of reappeals are borne by each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)