Whether the effect of trademark rights is effective in a case where one uses his trade name in a common way and uses it for unfair competition after the establishment of trademark rights is registered (affirmative)

Even if his trade name is used in a common way, it shall have the effect of a trademark right where it is used for the purpose of unfair competition after the establishment of the trademark right is registered.

Article 9 of the former Unfair Competition Prevention Act (amended by Act No. 4478 of Dec. 31, 1991); Article 51 subparagraph 1 of the Trademark Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Defendant

Defendant

Attorney Dat-law

Seoul Criminal Court Decision 92No5728 delivered on January 13, 1993

The appeal is dismissed.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to the records, since the trademark registration can be known to the fact on November 5, 1980, the trademark registration is subject to Article 11 subparagraph 1 and Article 2 subparagraph 1 of the former Unfair Competition Prevention Act (amended by Act No. 4478 of Dec. 31, 1991; hereinafter referred to as the "former Unfair Competition Prevention Act"), even if the complainant who is the trademark right holder has received the registration of transfer of the trademark right on December 29, 190 and the defendant has used the mark "under the UCPA" prior to the registration of transfer, so long as the time of use is obvious after the registration of the establishment.

In addition, even if his trade name is used in a common way, if it is used for unfair competition after the establishment of the trademark right is registered (Article 9 of the former Unfair Competition Prevention Act and Article 51 subparagraph 1 of the Trademark Act), the trademark right should be effective (Article 51 of the former Unfair Competition Prevention Act and Article 51 of the Trademark Act). According to the records, the defendant can be recognized to have been well aware of the fact that the above trademark was registered by the complainant. Thus, the defendant cannot be deemed to have no purpose of unfair competition. Therefore, there is no reason to argue that the trademark right cannot be effective or unfair competition cannot be committed since the defendant uses the trademark by attaching his trade name to the goods first than the complainant.

2. Regarding ground of appeal No. 2

According to the records, handbags produced by the defendant are no evidence to recognize that they are superior products than manufactured by the complainants, and the purpose of regulating under Article 2 subparagraph 1 of the former Unfair Competition Prevention Act is to maintain sound order in commercial transactions by preventing commercial competition by illegal means (Article 1 of the same Act). Thus, the above provision shall not apply only in cases where it is intended to cause confusion with high-class products by manufacturing low-quality products by manufacturing low-quality products. This is without merit.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)