Defendant

Prosecutor

Maximum available information

Attorney Park Jae-young, et al.

Seoul Central District Court Decision 2009No2623 Decided June 23, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of 20 million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Of the facts charged in this case, each of the facts charged in violation of the Trademark Act as stated in Articles 1 through 61, 65 through 67 of the List of Crimes 1 Crimes shall be acquitted.

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On May 21, 2008, the defendant was sentenced to a suspended sentence of one year for fraud at the Seoul Northern District Court on May 29, 2008, and the judgment became final and conclusive on May 29, 2008, and on September 11, 2008, the defendant was sentenced to a suspended sentence of two years for a violation of the Trademark Act at the Seoul Central District Court on September 19, 2008, and the judgment became final and conclusive on September 19, 2008.

The Defendant, in collusion with Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), sold fake bags, bags, shoess, shoess, and maliciouss, on which the trademark “GUCCI”, and “POLO” was attached, with the intent to acquire profits by selling them as if they were influences through the Internet shopping mall (www.com), the place of the shop shop shop (www. the place of the shop shop shop shop and the place of the shop shop and the place of the shop where the goods were attached, the ▽▽▽▽△△△△△△○.com (www.www. Gab.co.m.

The Defendant, in the event of selling counterfeit goods through the above shopping mall, was likely to be under the control of the investigative agency, and was likely to use them in the name of the seller, and opened a deposit account in the name of Nonindicted Co. 2 and Nonindicted Co. 3 Co. 3, with the sales registration certificate for Nonindicted Co. 2 and Nonindicted Co. 3, a corporation seal imprint, and a seal imprint, respectively, with the purchase price of KRW 2,00,000 and the sales price of KRW 3,00.

(1) Violation of the Trademark Act

피고인은 정당한 상표사용권한 없이, 공소외 1과 공모하여 2008. 3. 15. 서울 구로구 구로동 (지번 생략)에 있는 피고인의 집에서, 이름을 알 수 없는 자로부터 구입한 이탈리아 살바토레 페라가모 ‘SALVATORE FERRAGAMO’ 상표가 부착된 가짜 숄더백 1개를 위 3개의 인터넷 쇼핑몰을 통하여 대금 239,200원에 판매한 것을 비롯하여 별지 1 범죄일람표 기재와 같이 그 때부터 같은 해 8. 14.까지 사이에 같은 장소에서, ‘핸드백’ 등을 지정상품으로 하여 특허청에 각각 상표등록한 위 이탈리아 살바토레 페라가모 ‘SALVATORE FERRAGAMO’( (등록번호 1 생략), (등록번호 3 생략), (등록번호 2 생략)) 상표, 이탈리아 구치오구치쏘니에떼페아찌오니 ‘GUCCI’( (등록번호 4 생략), (등록번호 5 생략)) 상표, 미국 더폴로로렌컴포니 ‘POLO’ 상표가 각각 임의로 부착된 가짜 가방, 지갑, 신발, 헤어악세사리 등 총 6,057점을 대금 892,926,870원(정품시가 3,885,386,600원 상당)을 받고 이름을 알 수 없는 자들에게 판매함으로써 상표권자의 상표권을 침해하였다.

(2) Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment

On April 18, 2008, the Defendant, in collusion with Nonindicted 1, received KRW 861,600 from the sale price of fake goods to the account of ○○ Bank (Account No. 1 omitted) in the name of Nonindicted Company 2 in the above Internet shopping mall (www.com) and received KRW 861,600 from the purchaser’s name in the same manner 49 times from the purchaser’s name in the same manner during the period from August 18 of the same year, as shown in the attached Table 2, as shown in the list of crimes No. 2, the Defendant pretended that the Defendant received KRW 861,600 from Nonindicted Company 3 (Account No. 2 omitted), ○ Bank account (Account No. 3 omitted), △△△ Bank account (Account No. 4 omitted), and received KRW 891,330,532 from Nonindicted Company 3 in the same way.

B. The judgment of the court below

(1) As to the violation of the Trademark Act among the facts charged in this case, the part of the charges against trademark right holder's trademark right holder's trademark right infringement on the trademark (registration number 1 omitted, (registration number 3 omitted), trademark (registration number 2 omitted), It is judged that the above part of the judgment is identical to that of trademark right holder's trademark infringement on the trademark (registration number 4 omitted, (registration number 5 omitted), and that the above part of the judgment is more likely to be concurrent with that of trademark right holder's trademark infringement on the trademark (registration number 5 omitted) under the Trademark Act, in light of the fact that the defendant was sentenced to a stay of two years on September 19, 2008 after being sentenced to a stay of two years for a violation of the Trademark Act by the Seoul Central District Court on September 11, 2008, and the decision became final and conclusive on September 19, 2008.

(2) As to the violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment among the facts charged in the instant case, this is premised on the conviction of violation of the Trademark Act, and since the acquittal was pronounced on the violation of the Trademark Act among the facts charged in the instant case, it was judged that it constitutes a case not constituting a crime or

2. Summary of the grounds for appeal;

A. The facts constituting a crime in violation of the Trademark Act, in which the above judgment became final and conclusive, do not include the infringement of trademark rights, but differs from the trademarks such as Plamo Handba, etc., and their sentences and trademark registration numbers are different. Thus, the above final and conclusive judgment shall not extend to the violation of the Trademark Act due to the infringement of trademark rights of Plamo and Plamo, among the facts charged in this case.

B. In addition, as long as it was found guilty of violation of the Trademark Act due to the infringement of trademark right and Plamo-fin trademark right, among the facts charged in the instant case, the court below erred by misapprehending the legal principles, which acquitted all of the facts charged in the instant case.

3. Judgment of the court below

A. Violation of the Trademark Act due to the infringement of trademark right to pool

Since the main legal interest of the violation of the Trademark Act is the business credit of the trademark holder, as a matter of principle, the violation of the Trademark Act is established by the trademark right holder's right, and even if goods infringing the registered trademark are sold together on the same date as those of other goods infringing the registered trademark, each trademark infringement is in a substantive competition relationship. In full view of the evidence duly examined and adopted by the court below, while the facts charged in the violation of the Trademark Act include the trademark right infringement as Singapore, on the other hand, the facts charged in the violation of the Trademark Act are included in the facts established by the above judgment, and the infringement of the trademark right due to the infringement of the trademark right

B. Violation of the Trademark Act due to the infringement of the trademark right of Plaraf's new launch

The infringement of trademark rights refers to an act of using another person's registered trademark right as the designated goods without authority, and in full view of the entries of a copy of the trademark register and a copy of the judgment in this case, the act of trademark registration is not identical to that of another person's registered trademark right, and in full view of the entries in the trademark register and the entries in the copy of the judgment, the act of selling new products among the acts of infringement of trademark right in this case can be acknowledged as not including the act of infringement of trademark right in this case's name and the fact that the trademark right holder and the new one of the designated goods of this case are not identical to the act of infringement of trademark in this case's name and the single one of the designated goods of this case.

D. Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment

As seen above, as long as it was found guilty of violation of the Trademark Act due to the infringement of trademark rights in Singapore, 2,903,472 out of 8,920,060 won of the sales price of the goods bearing the trademark in the above fake, as described in attached Table 46 through 49, the prosecutor's assertion is also justified within the above scope of the facts charged that pretended about the acquisition of criminal proceeds, etc. by receiving KRW 2,903,472 out of the sales price of the goods bearing the trademark in the above fake from the ○ Bank account (Account No. 1 omitted) in the name of Nonindicted Co. 2

5. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

On May 21, 2008, the defendant was sentenced to a suspended sentence of one year for fraud at the Seoul Northern District Court on May 29, 2008, and the judgment became final and conclusive on May 29, 2008, and on September 11, 2008, the defendant was sentenced to a suspended sentence of two years for a violation of the Trademark Act at the Seoul Central District Court on September 19, 2008, and the judgment became final and conclusive on September 19, 2008.

The Defendant, in collusion with Nonindicted Party 1, sold fake bags, bags, shoess, and malicious books, etc., on which the trademark “POLO” was attached, as if they were as having been influored, through the Internet shopping mall, ○○○○○○○○○○○ (www. www. ▽▽▽▽▽△△○.com), and ○○○○○.co.m. (www. ○○○.).

The Defendant: (a) had concerns over selling counterfeit goods through the shopping mall as above, and had concerns over being controlled by an investigative agency; (b) had the intent to use them in the name of the seller, and opened a deposit account in the name of Nonindicted Co. 2’s company, including Nonindicted Co. 2’s business registration certificate, corporate seal imprint certificate, and seal imprint certificate, from a person whose name cannot be known on the website of “BB”; and (c) had purchased KRW 2,00,000, and then

1. Violation of the Trademark Act;

The Defendant, without legitimate trademark use authority, conspired with Nonindicted 1 on June 9, 2008, in collusion with the Defendant’s house located in Guro-gu Seoul Metropolitan Government (number omitted), sold 69,00 won for the purchase of a fake package on the part of the U.S., purchased from a person whose name was unknown, and sold 175 points for total of 175 points, such as a fake package on the part of the Defendant’s house located in Guro-gu Seoul Metropolitan Government (number omitted), from a person whose name was not known, and who was in violation of the trademark right holder’s trademark right by receiving 8,920,060 won for the purchase of a fake package (32,333,60 won) from April 11, 2008 to June 18, 2008 as indicated in Articles 62 through 64, 68, and 71 of the List of Crimes 1.

2. Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment.

In collusion with Nonindicted Party 1, the Defendant pretended to acquire criminal proceeds, etc. by receiving KRW 2,903,472 of the sales proceeds of the goods with the trademark attached to the above fake, from June 19, 2008 to July 10, 2008, on four occasions, from June 19, 2008, and from July 10, 2008, ○○○○○○○○ Co., Ltd. in the name of Nonindicted Party 2’s account (www. ○○○ Bank Account (Account Number 1 omitted) in attached Form 2.

1. Defendant's legal statement;

1. The prosecutor's protocol of interrogation of the defendant (including the statement of non-indicted 1)

1. Investigation protocol of Nonindicted Party 1 by prosecution

1. Each fact-finding certificate;

1. A copy of a request for cooperation and import declaration;

1. Presentation of sales data;

1. A copy of the appraisal report, appraisal report, or trademark register;

1. A criminal investigation report;

1. Criminal records;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 93 (Occupancys on Trademark Rights) Articles 3 (1) 1 and 6 (Occupancys on Concealment of Criminal Proceeds) of the Trademark Act, Regulation and Punishment of Concealment of Criminal Proceeds: Selection of fines for negligence.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2 and 3, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of the facts charged

The Defendant, in collusion with Nonindicted Party 1, sold fake bags, walls, shoess, and maliciouss, etc., on which the trademark “GUCCI”, “POLO” was attached, as if they were influorous goods through the Internet shopping mall (www.com), the place of the shop shop (www. the place of the shop shop, the place of the shop shop, the place of the shop shop and the place of the shop and the place of the shop and the place of the sale (www. www. ○○.co.m.) and the place of the shop and the place of the sale (www.

The Defendant, in the event of selling counterfeit goods through the above shopping mall, was likely to be under the control of the investigative agency, and was likely to use them in the name of the seller, and opened a deposit account in the name of Nonindicted Co. 2 and Nonindicted Co. 3 Co. 3, with the sales registration certificate for Nonindicted Co. 2 and Nonindicted Co. 3, a corporation seal imprint, and a seal imprint, respectively, with the purchase price of KRW 2,00,000 and the sales price of KRW 3,00.

In collusion with Nonindicted Party 1 on April 18, 2008, the Defendant received KRW 861,600 from the Defendant’s office located in Guro-gu Seoul Metropolitan Government (number omitted), through the address at the seat of the online shopping mall (www.com) and deposited KRW 861,60 in the account of ○○ Bank (Account No. 1 omitted) in the name of Nonindicted Company 2 in the name of Nonindicted Company 2, as described in Articles 1 through 45 of the List of Crimes 2, as shown in the attached Table 1 through 45 of the same year from the purchaser’s name in the same manner until August 18 of the same year, the Defendant received KRW 8,427,060 from Nonindicted Company 3’s account (Account No. 2 omitted), Nonindicted Party 3’s account (Account No. 3 omitted), and △△ Bank account (Account No. 4 omitted), thereby acquiring criminal proceeds, etc.

2. Determination

On the other hand, the above facts charged are based on the premise that the defendant was guilty of violating the Trademark Act among the facts charged in this case. Of the facts charged in this case, the part of the violation of the Trademark Act due to the act of trademark infringement of Plaramo and chit, shall be acquitted as follows. Thus, the most criminal intent to acquire criminal proceeds related to the infringement of the pertinent trademark right is not a crime or there is no proof of a criminal fact. Of the facts charged in this case, as to the part of violation of the Trademark Act, among the part of the facts charged in this case's trademark infringement, the crime proceeds related to the part as stated in Articles 68 through 71 of the List of Crimes 1 and there is no evidence to separately specify the criminal proceeds, and thus, the defendant shall be acquitted pursuant to Article 325 of the Criminal Procedure Act. However, since there is no evidence to prove the criminal facts, the defendant shall not be acquitted in accordance with the order of acquittal, so long as it is found guilty of the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment against the sale proceeds from Goods attached to the attached 2,903,

1. Summary of the facts charged

The Defendant, in collusion with Nonindicted Party 1, sold fake bags, walls, shoess, and maliciouss, etc., on which the trademark “GUCCI”, “POLO” was attached, as if they were influorous goods through the Internet shopping mall (www.com), the place of the shop shop (www. the place of the shop shop, the place of the shop shop, the place of the shop shop and the place of the shop and the place of the shop and the place of the sale (www. www. ○○.co.m.) and the place of the shop and the place of the sale (www.

피고인은 공소외 1과 공모하여 정당한 상표사용권한 없이 2008. 3. 15. 서울 구로구 구로동 (지번 생략)에 있는 피고인의 집에서, 이름을 알 수 없는 자로부터 구입한 이탈리아 살바토레 페라가모 ‘SALVATORE FERRAGAMO’ 상표가 부착된 가짜 숄더백 1개를 위 3개의 인터넷 쇼핑몰을 통하여 대금 239,200원에 판매한 것을 비롯하여 제1 내지 61항, 제65 내지 67항 기재와 같이 그 때부터 같은 해 8. 14.까지 사이에 같은 장소에서, ‘핸드백’ 등을 지정상품으로 하여 특허청에 각각 상표등록한 위 이탈리아 살바토레 페라가모 ‘SALVATORE FERRAGAMO’( (등록번호 1 생략), (등록번호 3 생략), (등록번호 2 생략)) 상표, 이탈리아 구치오구치쏘니에떼페아찌오니 ‘GUCCI’( (등록번호 4 생략), (등록번호 5 생략)) 상표가 각각 임의로 부착된 가짜 가방, 지갑, 신발, 헤어악세사리 등 총 5,582점을 대금 884,006,810원(정품시가 3,853,053,000원 상당)을 받고 이름을 알 수 없는 자들에게 판매함으로써 상표권자의 상표권을 침해하였다.

2. Determination

이 사건 기록에 의하면 피고인은 2008. 9. 11. 서울중앙지방법원에서 상표법위반죄로 징역 8월에 집행유예 2년을 선고받아 2008. 9. 19. 그 판결이 확정된 사실, 위 확정판결의 범죄사실은 “피고인은 다른 사람의 등록상표와 동일 또는 유사한 상표가 표시된 상품을 제조·판매하거나, 제조·판매할 목적으로 보관하여서는 아니 됨에도 불구하고, 2008. 2. 18.부터 같은 해 4. 28.까지 서울 성북구 장위동에 있는 상호 없는 사무실 내에서, 위조상표가 부착된 구찌(GUCCI), 페레가모(FERRAGGAMO) 넥타이, 악세사리, 가방, 핸드백, 반지갑 등을 판매할 목적으로 오픈마켓 사이트인 ▽▽▽(http:// ▽▽▽.co.kr)에 입점하여 게시판에 『페라가모[FERRAGGAMO]빅토리아 톨사첼백-핑크클럽-』라는 등의 제목으로 상품의 사진 등을 게시해 놓는 방법으로 광고하여, 성명불상자 회원들로부터 모두 93,894,655원 상당을 판매하여 등록상표인 구찌, 페라가모에 관한 상표권자의 상표권을 침해하였다.”라는 것이다.

Therefore, the facts charged as to the above violation of the Trademark Act and the facts constituting the above final judgment are related to a part of the series of crimes committed by the defendant who was engaged in the production and sale of fake bags, etc., and the method and period of the crime are similar, and thus, it is deemed that the defendant committed the same kind of crime under the single and continuous criminal intent for a certain period of time repeatedly. Thus, the above final judgment is deemed to have an effect on the above facts constituting a single comprehensive crime.

Therefore, as to the violation of the Trademark Act stated in [Attachment 1] through 61, 65 through 67 among the facts charged in the instant case against the Defendant, the judgment of acquittal shall be rendered in accordance with Article 326 subparagraph 1 of the Criminal Procedure Act, and it is so decided as per Disposition.

[Attachment]

Judges Lee Jae-tae (Presiding Judge)