209 Doz. 21303 Compensation for damages

A

1. B

2. C Stock Company:

3. D;

4. Stock company E.

5. F;

6. G.

August 31, 2010

September 9, 2010

1. The Plaintiff:

A. Defendant B Co., Ltd. shall pay 20,284,839 won, and 5% per annum from September 28, 2009 to September 9, 2010, and 20% per annum from the next day to the day of full payment;

B. Defendant C Co., Ltd. shall pay 48,03,625 won with 5% per annum from September 29, 2009 to September 9, 2010, and 20% per annum from the next day to the day of full payment. Defendant D shall pay 63,094,873 won per annum from September 27, 2009 to September 9, 2010, and 20% per annum from the next day to the day of full payment;

D. Defendant E shall pay 100,000,000 won per annum from October 21, 2009 to September 9, 2010; and 20% per annum from the next day to the day of full payment;

E. Defendant F shall have 5% interest per annum from September 30, 2009 to September 9, 2010 and 20% interest per annum from the next day to the day of full payment;

F. Defendant G is 276,750 won and 5% interest per annum from September 29, 2009 to September 9, 2010, and 20% interest per annum from the next day to the day of full payment.

sub-payment.

2. The Plaintiff’s remaining claims against Defendant B, C, D, F, and G are all dismissed.

3. Of the costs of lawsuit, 4/5 of the portion arising between the Plaintiff and the Defendant Company B is the Plaintiff; the remainder is the Plaintiff; the remainder is the Plaintiff; the remainder is the 2/5 of the part arising between the Plaintiff and the Defendant Company; the remainder is the Plaintiff; the above Defendant is the part arising between the Plaintiff and the Defendant Company E; the remainder is the Plaintiff; 9/10 of the part arising between the Plaintiff and the Defendant Company E; and the remainder is the Plaintiff; and the remainder is the part arising between the Plaintiff and the Defendant G.

4. Paragraph 1 can be provisionally executed.

Defendant C Co., Ltd, D, and E shall pay 100,000,000 won each of them, Defendant B, F, and G shall pay 40,000,000 won each of them, and 20% interest per annum from the day following the delivery of a copy of the instant complaint to the day of complete payment.

1. Basic facts

A. The Plaintiff is a person engaged in the manufacturing, wholesale, retail, and manufacturing of Choun Kim with the trade name of H. The Defendants are individuals or legal entities that manufacture and sell Choun Kim, and among them, Defendant D is running their businesses with the trade name of "T" and "J".

B. On February 23, 1993, K applied for the trademark of this case as designated goods under paragraph (1) of the attached list (hereinafter referred to as the "registered trademark of this case"), Kim Jong-jin, etc. on February 24, 1994, and completed the registration thereof on February 24, 1994, M obtained the registration of transfer of each right as to one-half of the trademark rights of this case from K on March 19, 204, and the remaining one-half of April 6, 2004 as to the remaining one-half of the trademark rights of this case from M on April 14, 2004. N obtained the registration of transfer of all the trademark rights of this case from N on May 25, 2004, P had completed the registration of transfer of Q net from P on August 9, 2005 to P on August 24, 2005.

D. From mid-209 Police Officers to early 2010, Defendant B Co., Ltd. (hereinafter “Defendant B”), Defendant C Co., Ltd. (hereinafter “Defendant C”), Defendant D manufactured a trademark infringing on the attached list by printing it on its packaging, and Defendant E Co., Ltd (hereinafter “Defendant E”), Defendant F, and G sold it.

E. Meanwhile, as the creditors of M, as the Seoul Central District Court 2007Gahap715666, the Suwon District Court 2007Gahap10302, the transfer contract between M and N on the trademark of this case was entered into against the Plaintiff and N, and won each lawsuit seeking cancellation of the said transfer contract and restoration to its original state on the ground that the transfer contract between M and N was a fraudulent act. The above decisions were appealed to the Supreme Court following an appeal by the Supreme Court and the final appeal was dismissed and finalized by the Supreme Court No. 2009Da49711, 2009Da49728, and the registration of transfer of trademark of the Plaintiff was revoked on July 15, 2010 according to the execution of the above rulings.

F. On April 14, 2009, U Co., Ltd. (hereinafter “U”) requested a trial to revoke the registration of the trademark of this case against the Plaintiff and NN as the trademark holder of the instant trademark and the Intellectual Property Tribunal under 863 per 2009. On December 11, 2009, the Intellectual Property Tribunal rendered a decision to revoke the registration of the instant trademark on the ground that there is no evidence to prove that the instant registered trademark was used in Korea for at least three years prior to the date on which the request for revocation was filed. The Intervenor of the said trial filed a claim against U on January 16, 2010 for the revocation of the said trial decision with the Patent Court No. 2010, 2010, but the Patent Court dismissed the said claim on May 6, 2010, which was appealed by Supreme Court Decision 2010Hu1435, and is still pending in the Supreme Court as of the date of closing argument of the instant case.

【Ground of recognition】 The fact that there is no dispute, Gap's 1 through 8, 19, 20, 29, 33, Eul's 1, 2, 8, 9, Eul's 1, 2, 26, Eul's 5 through 13, and the purport of the whole pleadings (including a serial number if any)

2. Determination as to whether the trademark right of this case was infringed

A. Infringement of trademark right of this case

1) Whether the registered trademark of this case is similar to the registered trademark of this case and the trademark of this case is composed of three letters, namely, ‘third party', and whose father and two arches are named as ‘third party', and the trademark of this case is named as ‘third party', such as the appearance, without any special exception except for those written somewhat thicken,.' Although the part is identical with the registered trademark of this case (except that there is no particular feature in the letter of the trademark of this case, the word of the trademark of this case and the infringed trademark of this case are surrounded by the substantial real line, but it is extremely similar to the word of ‘third party', ‘the word of the trademark of this case and the infringed trademark of this case' of this case, ‘the word of the trademark of this case are similar to that of the trademark of this case' in the opposite direction to the upper part of the trademark of this case, it can be easily divided into ‘the part of the registered trademark of this case' as ‘the part of this case', ‘the trademark of this case', which is similar to the part of this case.

2) In addition to the facts acknowledged earlier, the trademark of this case and the infringed trademark of this case are similar to the registered trademark of this case, the defendants used without authority a trademark similar to the registered trademark of this case for the designated goods of the registered trademark of this case, and therefore the defendants infringed the trademark of this case.

B. Determination of the defendants' assertion

1) As to the cancellation of the registration of transfer of trademark rights according to the ruling on revocation of fraudulent act

(A) The Defendants asserted that, on the ground that the transfer contract for the trademark right of this case between S and N was fraudulent, the transfer contract between M and N was filed against the Plaintiff and N, and that, on the ground that the transfer contract for the trademark right of this case was fraudulent, the said transfer contract was revoked, and that the judgment accepting S and T’s claim was revoked on July 15, 2010, since the transfer registration under the Plaintiff’s name was revoked, the Plaintiff may not claim damages retroactively lose the status of the trademark right holder.

(B) In a case where a creditor is sentenced to the revocation of a fraudulent act that orders the beneficiary or a subsequent purchaser to recover a responsible property with the revocation of a fraudulent act, the effect of such revocation is limited to the creditor, beneficiary, or subsequent purchaser, and thus, the beneficiary or the subsequent purchaser is merely liable for restitution to the creditor due to the revocation of a fraudulent act. The legal relationship arising from such revocation is formed between the debtor and the debtor and the effect of revocation is not that of restitution to the debtor’s responsible property retroactively (see, e.g., Supreme Court Decisions 9Da9011, May 5, 2001; 2005Da1407, Apr. 12, 2007). As alleged by the Defendants, one-half share of the trademark rights of this case, contrary to what is alleged by the Defendants.

Although the judgment ordering the cancellation of the registration of transfer of the trademark right in the name of the plaintiff was confirmed and its execution is completed, the plaintiff cannot be deemed to retroactively lose the status of the trademark right holder in relation to the defendants, and the plaintiff has the status as the trademark right holder against the defendants before July 15, 2010. Thus, the defendants' assertion is without merit.

2) The assertion as to the existence of intention or negligence

The defendants asserted that there was no intention or negligence on the goods bearing the trademark of this case since the plaintiff did not indicate that the trademark of this case is a registered trademark.

On the other hand, the facts of the registration of the trademark of this case are as seen earlier, and the infringement of trademark rights by intention does not constitute a tort, and the above assertion by the defendants is without merit.

(iii) argument as to the existence of non-exclusive license

(A) Defendant G argues that this case’s trademark infringement is not constituted since Defendant G entered into an agency contract with R, the non-exclusive licensee of the instant registered trademark, and only sold the goods bearing the instant trademark, since it was the goods supplied with the goods bearing the instant trademark.

In light of the above facts, N entered into the Agreement on April 14, 2004 and completed the establishment registration of non-exclusive use right of the instant registered trademark with "the discharged area of the Republic of Korea" and as the deceased on May 22, 2008, R succeeds succeeds to the above non-exclusive use right of the net Q. However, as seen above, the Plaintiff and N appear to have obtained the above non-exclusive use right of the Plaintiff's 2-1, 9, and 1-C's evidence No. 2-1, 00, and 4-2, the Plaintiff's change of the agreement between the Plaintiff and the Plaintiff and the Plaintiff's representative director on August 8, 2005 and the non-exclusive use right of the instant registered trademark in accordance with the Agreement on Contracts No. 1, 2005, and the Plaintiff's change of the Agreement on Contracts No. 5, 2, 2,000, to supply the Plaintiff's non-exclusive use right of the instant trademark to the G.

(B) Defendant C, D, and E claimed that the trademark infringement is not constituted since they manufactured the goods bearing the infringing trademark at the request of R, who is a non-exclusive licensee, and thus, they did not constitute trademark infringement. Thus, even if they were requested to process the goods entrusted by R as alleged by the above Defendants, if they were manufactured by the Defendants, not R, it constitutes the act of infringing the trademark right of this case. The fact that the Defendants manufactured the goods bearing the infringing trademark in their trade name is as seen earlier, and there is no evidence to acknowledge that the Defendants were requested to process the goods entrusted by R, and there is no reason to see any of the above arguments.

(C) Defendant F is engaged in the business in the name of R and J as the non-exclusive licensee of the trademark of this case. Thus, it is argued that the infringement of the trademark of this case is not constituted. Thus, even according to the above argument, the above J merely is a trade name on the personal business registration, not a corporation, and it is difficult to view that the non-exclusive licensee of the trademark of this case is granted the non-exclusive licensee of the trademark of this case and the above J is not a non-exclusive licensee of the trademark of this case. The above defendant did not have any evidence to prove that the trademark of this case is identical with R

4) Claim on the cancellation of trademark registration

(A) On April 14, 2009, Defendant G claimed a trial for revocation of registration against the Plaintiff and NB, the trademark holder of the instant case, and the Intellectual Property Trial and Appeal Board claimed on December 11, 2009 that U revoked the registration of the instant registered trademark on the ground that there was no evidence to acknowledge that the instant trademark was used by the trademark holder or the legitimate licensee in the domestic form for at least three years prior to the date of filing a trial for revocation, and that there was no evidence to acknowledge that the instant trademark was used by the trademark holder or the legitimate licensee in the domestic form, so the trademark right infringement is not infringed.

(B) The Korean Intellectual Property Tribunal rendered a decision to revoke the registration of the trademark of this case, the patent court dismissed the lawsuit seeking revocation of the above decision, and the facts in the trial of the Supreme Court are as seen earlier. However, when a decision to revoke the trademark registration becomes final and conclusive under Article 73(7) of the Trademark Act, the trademark right shall cease to exist from the time of the revocation of the trademark registration, and the defendant G'

3. Determination on the scope of damages

A. The Plaintiff’s share scope of the trademark right of this case

1) The Plaintiff asserted that, on March 18, 2004, the first owner of the trademark of this case, K and ASEAN, which are its first owner, jointly operated the trademark of this case, were increasing due to business difficulties, the Plaintiff transferred the trademark of this case to the Plaintiff with a large amount of debt X, and the Plaintiff became the owner of the trademark of this case from that time, and the Plaintiff merely trusted the trademark of this case to N, and the Plaintiff is the owner of the trademark of this case, not the co-owner of the trademark of this case.

2) We examine the case where the Plaintiff agreed to acquire the entire trademark right of this case from K as above, unless the Plaintiff completed the registration of transfer of trademark right, the Plaintiff is merely an applicant for registration of transfer of trademark right, and cannot be deemed an owner of trademark right, and there is no evidence to acknowledge that the Plaintiff acquired the trademark right of this case from K, and instead, in full view of the purport of the entire pleadings in the statement in Eul 3 and 4, the Plaintiff agreed to pay KRW 5 million per month to M for the purpose of obtaining the consent of M who is a joint owner of trademark right while acquiring the trademark of this case owned by P on August 8, 2005. The Plaintiff filed a lawsuit for the transfer of trademark right of this case by Suwon District Court 2009Da7857 as to the above agreement, but the above court rejected the Plaintiff’s appeal as to October 8, 2009 and the court below rejected the Plaintiff’s assertion that the Plaintiff did not actually own the trademark right of this case as the whole, but did not have any reasonable ground to 201/60.1.6.

B. Scope of exercise of the Plaintiff’s right to claim damages

1) The Plaintiff asserts that the Plaintiff shall compensate the Plaintiff for the total amount of damages not exceeding 1/2 of the amount of damages caused by the infringement of the trademark right of this case, since N, a joint owner of the trademark of this case, did not operate early 2006, if the owner of the trademark of this case did not engage in business activities during the period of using another person’s registered trademark without permission.

2) If it is revealed that no damage has occurred to the owner of a trademark notwithstanding the act of infringement of trademark right, it is reasonable to interpret that the infringer may be exempted from liability for damages (see, e.g., Supreme Court Decisions 96Da43119, Sept. 12, 1997; 96Da43119, Oct. 10, 2002; 2002Da33175, Nov. 1, 200). However, it is insufficient to conclude that no damage has occurred due to the infringement of trademark of this case to the joint owner of a trademark solely with the statement of the evidence No. B or 4, and the essence of trademark right is not simply a right to use the trademark, but a monopoly of the trademark of the trademark of this case. Thus, if the trademark is used without permission of the owner of the trademark, even if the owner of the trademark does not use the trademark, it is reasonable to deem that the damage has been damaged as a result of the reading of the trademark, and therefore, it is reasonable.

C. Whether the Plaintiff can solely exercise the right to claim damages

1) The Defendants asserted that the Plaintiff is merely a co-owner of the trademark right of this case and can not solely exercise the right to claim damages. Thus, each co-owner cannot transfer his/her share or establish a pledge on his/her share without the consent of the other co-owners, and does not have the nature similar to the joint ownership within the scope of the restriction, such as where the trademark right is derived from the distinct characteristics of the intangible property right, but such restriction is merely derived from the trademark right, and it cannot be deemed that the trademark right is owned by forming a partnership body based on the joint purpose or the partnership relationship, and unless there is any express provision that the joint ownership of the trademark right is deemed a joint ownership relationship. Thus, the provisions of the Civil Act can be applied to the extent that it does not go against the inherent nature of the trademark right (see, e.g., Supreme Court Decision 2002Hu567, Dec. 9, 2004). Thus, if the co-owner's claim for damages is recognized as one of the joint owners' claim for damages under the legal principles as one of the above co-owner's claim for damages.

D. Specific scope of damages

1) The facts that the Defendants manufactured or sold goods bearing a trademark mark during the calculation period from the second half of 2009 to the first half of 2010 are as seen earlier, and there is no other specific data at any specific time. Thus, the period during which the trademark right of this case was infringed shall be one year from July 1, 2009 to June 30, 2010.

2) Compensation based on Article 67(1) of the Trademark Act

(A) The Plaintiff asserts that, from July 1, 2009 to December 31, 2009, Defendant B, C, D, and E should pay as damages the amount equivalent to the total sales from July 1, 2009 to December 31, 2009 multiplied by the Plaintiff’s operating profit ratio of the trademark right holder. Pursuant to Article 67(1) of the Trademark Act, where the trademark right holder claims compensation from a person who has intentionally or negligently infringed his/her trademark right and the infringer transfers the goods that caused the infringement, the amount calculated by multiplying the quantity of the goods transferred by the profit per unit of the goods that the trademark right holder could have sold in the absence of the infringement may be deemed as the amount of damages

(B) The Plaintiff’s total sales revenue amounting to KRW 4,371,273,104 and KRW 200,841,99 for net income amounting to KRW 4,158,063,94, and KRW 189,51,528 for net income amounting to KRW 4,158,063,946 for net income amounting to KRW 189,51,528 for net income amounting to KRW 200,841,99, KRW 4,371,273104, KRW 189,511,563,946 for net income amounting to KRW 200,841,99, KRW 4,371,27310, KRW 189,51,52, KRW 4,158,963,946) may be ratified.

(C) Meanwhile, comprehensively taking account of the overall purport of the arguments as a result of the inquiries into the fact-finding with respect to the Hanyang Tax Office, Hongsung Tax Office, Ansan Tax Office, Dong Cheongju Tax Office, Sungnam Tax Office, Lee Jongcheon Tax Office, and Suyang Tax Office, the scope of the defendants' sales and liability from July 1, 2009 to December 31, 2009 are as follows (the defendants' sales from January 1, 2010 to June 30, 2010). Since there is no evidence to prove this, the defendants' total compensation amount should be calculated as the same amount as the half of the half of the half of the year 2009, the plaintiff's share should be divided into two times the amount of compensation for the second half of the year 209, or the plaintiff's share of co-ownership for the second half of the year 209.

A person shall be appointed.

(B) A forest less than Won

3) Determination on a claim for damages based on Article 67(3) of the Trademark Act

(A) On September 28, 2007, the Plaintiff asserted that the Plaintiff entered into an exclusive license agreement with U representative Y as to the trademark, such as a single copy, which is similar to the trademark of this case, and received the amount calculated by adding KRW 400,000 per container to KRW 2,00,000 per month as the usage fee, and the Plaintiff received KRW 6,00,000 per month from November 2009 to KRW 6,00,00 each month. Thus, Defendant F and G should pay the amount equivalent to the above amount as the amount of damages.

(B) According to each of the records, Gap evidence Nos. 30 through 32 (including branch numbers) is acknowledged that the plaintiff received usage fees as alleged above with respect to the above Japanese registered trademark. However, the agreement between the plaintiff andY grants Y the right to manufacture and sell the above trademark Kim, etc. in Japan, and the trademark usage fees for the Japanese registered trademark are difficult to be deemed to be an amount equivalent to the amount which the plaintiff would normally receive for the use of the registered trademark under Article 67 (3) of the Trademark Act in relation to the above defendants, considering the market situation and price differences between Korea and Japan. Thus, the plaintiff's assertion on the calculation of damages against the above defendants is without merit.

4) The defendants' assertion

(A) Defendant B argues that the sales amount excluding the above amount is irrelevant to the infringement of the trademark right of this case, and thus, the presumption of damages as to the above amount of damages is not sufficient to recognize the above Defendant’s assertion on the sole basis of the statements in the evidence Nos. 4 and 6, and there is no other evidence to acknowledge it.

(B) Defendant C, D, and E asserts that only the transaction amount with the JJ operated by Defendant F among the total tax invoices for each purchaser and seller, the presumption of damages was followed since only the transaction amount was the sales amount of the goods marked with the trademark infringed upon, and therefore, according to each of the above statements, the above Defendants traded with persons with trade names other than J, but the above Defendants cannot be deemed to have made or sold the goods marked with the trademark infringed upon to the parties other than J. However, it cannot be deemed that the transaction parties other than J did not manufacture or sell the goods marked with the trademark infringement. Furthermore, the specific sales amount of the goods marked with the trademark infringement mark is written against the above Defendants, and the above Defendants did not submit it, and there is no evidence to acknowledge it otherwise, and therefore the above assertion is not reasonable.

(C) Defendant F sold the goods bearing the trademark of this case as well as the goods bearing the trademark of this case, and it cannot specify the amount of damages in detail. Thus, the presumption of damages is asserted that the specific sales data of the goods bearing the trademark of this case are destroyed. Thus, the specific sales data of the goods bearing the trademark of this case are deemed to be Defendant F, and there is no other supporting data of the deduction, and the above assertion is without merit.

(D) On December 24, 2009, Defendant G received and sold the amount equivalent to KRW 250 stuffs, gold 4,884,800 from Defendant B’s goods bearing the trademark infringement mark, and the said amount is only related to the infringement of the trademark right of this case, but the said assertion has no reason as seen above.

5) Sub-decisions

Therefore, Defendant B Co., Ltd. from September 28, 2009 to the day following the day on which the copy of the complaint of this case was delivered to the above Defendant; from September 29, 2009 to September 28, 2009, Defendant C Co., Ltd. from September 29 to the day following the day on which a copy of the complaint of this case was delivered to the above Defendant; from September 29, 2009 to the day following the day on which the copy of the complaint of this case was delivered to the above Defendant; from September 27, 2009 to the day following the day on which the copy of the complaint of this case was served to the above Defendant; from September 27, 2009 to the day following the day on which the complaint of this case was served to the above Defendant; from September 27, 2009 to the day following the day on which the complaint of this case was clearly delivered to the above Defendant, the above amount of KRW 100,000,00,00 and KRW 297.35.37.

4. Conclusion

Therefore, each of the plaintiffs' claims against the defendants of this case is accepted within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit.

The presiding judge, the fixed number of judges

Mobilization of Judges

Judges Shin Young-chul