207Kahap3358 Provisional Disposition against infringement of trademark rights

Scenic District Co., Ltd.

Attorney Park Jong-soo, Counsel for the plaintiff-appellant

seven persons, such asOO

Law Firm Gyeong-woo, Counsel for the plaintiff-appellant

May 8, 2008

1. Respondent - - 100 million won as a guarantee for A, - - The Respondent - – the - the - the State

Food Company - - Each of 50 million won as a guarantee for B, and the respondent corporation - the respondent - the guarantee for B

- 10 million won, - Respondent - Stock Company - Stock Company - - Guarantee for B, respectively 3,000

(1) A payment guarantee entrustment agreement agreement document which deposits only won, or each of the above amounts is the guaranteed amount;

Subject to the submission:

(a) The respondent shall indicate in the attached list 1 marks on the goods or packages of the goods, or

Transfer or delivery of goods or packaging thereof, or display for that purpose;

Export or import, and advertisements on goods, price lists transaction documents, signboards, labels, and other advertising mines;

No advertisement shall be displayed on, or distributed in, a solid thing.

(b) The respondent is in custody of his office, factory, warehouse, place of business, store, and store.

Part 1 A mark on finished products and semi-finished products, packaging paper, packing paper, packing paper, advertising advertisement;

one possession shall be grassed and delivered to the execution officer entrusted by the applicant. In this case,

An execution officer shall publicly notify the purport of his custody in an adequate manner.

(c) An enforcement officer shall, upon a request by the respondent, carry out the finished product and semi-finished products, packaging paper, packing paper and packing containers;

The respondent shall cancel the attached list 1 marks from advertisements and the above objects

shall be returned.

2. The costs of the lawsuit shall be borne by the respondent.

The order is as set forth in the text.

1. Determination as to the grounds for the application

According to the records, the applicant is a trademark right holder of the attached list 2, and the mark and the attached sheet

Schedule 3 Marks, the body of which has a relatively large face compared to the office, and the upper part of the head;

The head of his scoo shall protruding out, and three son and pin in the part of his head shall be attached.

as the so-called "a character brand consisting of a woman who is charged with his or her son and female with a major feature," his or her character as a "a character."

The facts of use as a product mark or business mark (hereinafter referred to as the "Annex 2, 3") shall be as shown in the attached Table 2, 3

In common, "the mark of this case" is referred to as "the mark of this case," and the applicant, either directly or with the applicant, shall enter into a contract for commercialization.

The mark of this case, which is used as a character brand through a third party, is decided as a provisional disposition of this case.

Around 1) On the basis of B, domestic ordinary consumers in relation to fashion goods, such as bags and phrases

The Respondent appears to be widely known among them, however, that the Respondent

Using marks in the attached list 1 similar to the instant mark, which are used for fashion goods, such as bags and phrases;

The manufacture or sale is being made or sold, and as a result, the general consumer has made the respondent or the respondent.

group of applicants, etc. engaging in the business of commercialization of the mark of this case and a specified title;

The fact that it causes mistake and confusion about the source by giving an appearance that it is in a business relationship.

This vindication shall be substantiated.

If so, the respondent's act constitutes a trademark infringement of the applicant's trademark right unless there are special circumstances.

At the same time, the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Unfair Competition Prevention Act")

D) It shall be each of the unfair competitive acts defined in subparagraph 1 (a), (b), and (c) of Article 2.

is the same.

2. Judgment on the Respondent's argument

A. As to the assertion that the trademark is not used

The intention of the respondent to print the word "mariend" in his or her price list of household products is that the respondent has printed his or her words.

The design bream is the color, shape, etc. of the vegetable flag, and such design bream is the same.

b For the purpose of brief description of the color, color, shape, etc. in a common way, indictment of a son on the product

Use of a character also indicates the source to improve the integrity of the product.

Because it is not intended for the purpose, the mark listed in the attached Table 1 is not used as a trademark.

I asserts that this case is.

The registered trademark of another person or a trademark similar thereto is identical or similar to the designated goods.

(1) if it is used on a product, it shall be used only as a design for the first time.

A trademark is not intended for the indication of source, which is an essential function of the trademark, such as the case of a trademark.

If the use of the registered trademark cannot be recognized, it shall not be deemed an act infringing the trademark right of the registered trademark.

It is required to dismiss (Supreme Court Decision 2004Do5034 Delivered on October 15, 2004, etc.), on the other hand, design and trademark

The shape or shape that can be a design is not an exclusive or selective relationship; thus, it is not an exclusive or selective relationship.

even if it is called the essential function of the trademark, the indication of origin of another product that is called the essential function of the trademark.

such use as may be deemed to be used for the purpose of

(Supreme Court Decision 98Do2743 delivered on December 26, 2000, etc.). It shall be explained by the records.

the applicant’s use of the mark in the attached list 1, the applicant’s well-known and well-known of the instant mark, and the application for challenge

In full view of the intention of the persons and the process of their use, the respondent shall have the mark listed in the attached Table 1.

Since the respondent's above assertion is also used as an intention to indicate the status, the respondent's above argument is with merit.

(2).

B. As to the assertion that there is no distinctive character in the part of ‘dives' or ‘DALK'

The respondent's statement of the applicant's letter of the mark of this case as a part of the mark of this case and an alphaba;

Part of the discriminatory characteristics such as ‘DALK' and the diagrams in the shape of the ancillary, blick, and lives;

In common, a common surname or name under Article 6 (1) 5 of the Trademark Act is common;

a trademark consisting solely of a mark indicated by means of use, which constitutes "a trademark" and which is not registered as such.

B. argues that even if registered, distinguishability cannot be recognized.

However, the term "a common surname or name" under Article 6 (1) 5 of the Trademark Act means a natural person.

The name, or the name, trade name, trade name, etc. of a corporation or organization shall mean all common masters.

In addition, the common name of "mariend" is not the designated goods of the mark of this case, the word, "mariend," and the phrase.

With respect to the goods used in the fashion, it may be deemed that it is a common name, a public trademark or a technical mark.

Therefore, the respondent's above assertion is without merit.

C. As to the assertion that the registered trademark of earlier application is legitimate use

The respondent’s marks listed in the attached list 1 used by him shall be the side flag of his her son and woman.

Application is filed earlier than the registered trademark of the applicant (No. 23, No. 10, Dec. 10, 2004) of the applicant who made a shape more than the registered trademark of the applicant

A duly used the registered trademark of the △△△△△△ (No. 2, No. 11, 2002) other than the filing date, for the registered trademark of the △△△△△ (the filing date);

Therefore, it argues that trademark infringement or unfair competition act does not constitute trademark infringement or unfair competition.

According to the records, the above △△△△△ is a product, such as student bags, handbags, etc. on March 11, 2002.

Application for trademark registration of a character with the category No. 18 as designated goods;

The facts of obtaining trademark registration by Law No. 558376 of August 4, 2003, - The respondent - The light of April 17, 2007

After obtaining permission from △△△△ for the use of the above registered trademark, the respondent corporation around that time

- - - - The fact that the contract for commercialization with respect to the character was made with the company - The fact that it was made with respect to the character.

of this section.

However, in order to use the registered trademark for the designated goods as an exercise of the trademark right;

at least the same time a trademark shall not be used physically with the registered trademark of the Si.

The registered trademark should be used in a form that can be seen to be the same in light of the social norms.

The use of modified materials to the extent that does not harm the identity is permitted, but goes beyond the extent thereof.

It is not sufficient to recognize that the use of a similar trademark was a use of the registered trademark only by itself.

(See Supreme Court Decision 92Hu1950 delivered on May 25, 1993, see Supreme Court Decision 92Hu1950 delivered on May 25, 199). The respondent is actual

compared to the above registered trademark, the marks listed in the separate sheet 1, which are those used as trademarks, the actual company

The emblem shall be composed of only the face of a woman, or without a flowers-shaped, or DALKI, 'DALKI';

The registered trademark is combined with "strawry, etc." and the registered trademark is on the upper part of the head of a woman.

Unlike those with flap and sap, the head of a woman in the actual use mark, unlike those with flap and saped leaves.

In the case that part is expressed as protruding the headaus, the respondent is a room.

The mark used as a proposal is difficult to be deemed as identical to the above registered trademark in light of the social norms of the trade society.

the respondent's use of the marks listed in the separate sheet 1 is the earlier application, etc.

The respondent's above assertion cannot be seen as falling under the legitimate use of the trademark

No reason exists.

D. As to the assertion that the author’s copyright is legitimate use

The respondent’s marks listed in the attached list 1 used by him shall be the side flag of his her son and woman.

The registered trademark of the applicant (No. 2, No. 33, No. 10, Dec. 10, 2004) whose shapes are applied for.

first of all, the copyright of the above △△△△△△ (the title No. 1 certificate, March 11, 2002) which was created prior to the filing of the action is duly approved.

Since they are used, they claim that they do not constitute trademark infringement or unfair competition act.

The use of the registered trademark conflicts with another person’s copyright created prior to the filing date of the application;

(see Article 53 of the Trademark Act) The action shall take precedence over the copyright (see Article 53 of the Trademark Act), and shall be made by the entry of the evidence No. 1

The proposal created by the above △△△△△ on March 11, 2002 shall be recorded in the copyright register.

The facts are explained, on the other hand, the registration of copyright is merely a single disclosure system.

The registration authority does not have the authority to examine the substantive legal relationship, and according to the records, △△△.

Before March 11, 2002, △△△ has already created the above design by the applicant;

A substantially similar design has been created and published, and △△△△ also knows such circumstances.

In light of the fact that it appears to have been seen, △△△△△ alone is the foregoing proposal.

It is insufficient to recognize that the first creation and the first acquisition of the copyright have been made by the respondent.

The above argument is without merit.

E. As to the assertion of the right to use continuously following the prior use

Before the respondent obtains well-known and well-knownness of the mark of this case of the applicant

In Korea the marks listed in the attached Table 1, on the basis of the trademark rights and copyrights of the △△△△△△ outside of this application

Since the respondent was employed and continued to use it, it constitutes an unfair competition act.

I asserts that it does not mean that it does not exist.

However, there is an unfair competition act under Article 2 subparagraph 1 (a), (b), and (c) of the Unfair Competition Prevention Act.

In other words, ‘the bad faith of the unfair competitive act' or ‘the purpose of the unfair competitive act' for the unfair competitive act.

The subjective intention of the actor is not the requirement, and the good faith under the Unfair Competition Prevention Act is not the requirement.

Since there is no express provision excluding the act of the pre-user in the unfair competitive act, the application for age is filed.

Before the Respondent acquires well-known and well-knownness of the mark of this case, the Respondent

Attached Form 2 without knowledge of the existence of the mark of this case or without the purpose of unfair competition

Part 1, even if the mark in this case was used, it is well known and well-known by the applicant.

the respondent's marks of use are well-known and well-known;

In the instant case where there is a risk of confusion with the marks of the Cheongman, the respondent

The above act is an unfair competition under Article 2 subparagraph 1 (a), (b), and (c) of the Unfair Competition Prevention Act.

Since it constitutes an act (see Supreme Court Decision 2002Da9011 delivered on March 25, 2004), the respondent shall be subject to such an act.

The above assertion by the applicants is without merit.

3. Conclusion

Therefore, the applicant is against the respondent Article 65 of the Trademark Act and Article 4 of the Unfair Competition Prevention Act.

of the record, there is a right to seek a provisional disposition as described in paragraph (1) of this section.

In light of all the circumstances, the necessity of preservation is sufficiently substantiated.

The application of this case against the audience is justified and cited as a condition to offer each security.

The presiding judge and judge

Judge Lee Jin-ju

Judges Noh Jae-ho

1) With respect to the claim for prohibition under Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act, subparagraph 1 (a), (b) and (c) of Article 2 of the same Act

Whether a mark indicating another person's goods or business is widely known in Korea shall be determined as at the time of the conclusion of the fact-finding proceedings.

As such, (see Supreme Court Decision 2002Da9011 delivered on March 25, 2004). In the case of provisional disposition with this subject, a decision equivalent thereto is made.

It should be determined as of the fixed date.