The prosecutor's appeal is dismissed.

1. In light of the following: (a) the trademark “F” used by the Defendant; (b) relation to each of the instant goods; (c) the type and size of the use of the pertinent tag (the location and size indicated on the goods, etc.); (d) well-knownness of the registered trademark; and (e) intent and use of the user’s intent and use of each of the instant goods, insofar as the Defendant indicated the victim’s “H” trademark as the sales salesperson on the back of each of the instant goods, it constitutes an infringement

Nevertheless, the judgment of the court below which acquitted Defendant Defendant on the ground that it was insufficient to view such act as a trademark so that it can function as a product identification mark, is erroneous in the misunderstanding of facts or in the misapprehension of legal principles.

2. The summary of the facts charged is a person who establishes and operates the Dongdaemun-gu Seoul Metropolitan Government E and 101 F Co., Ltd. from November 9, 2009.

No person shall use a trademark identical with another person's registered trademark on goods similar to the designated goods, or use a trademark similar to another person's registered trademark on goods identical with or similar to the designated goods.

Nevertheless, from February 1, 2012 to March 27, 2015, the Defendant infringed upon the trademark rights of the said “G Co., Ltd.” by selling three kinds of link drinks that are identical or similar to the trademark “H” (trademark registration number: I, J) that is registered with the Korean Intellectual Property Office of Korea as a salesperson at the office of the said F Co., Ltd. (G Co., Ltd.) and selling them to many and unspecified persons.

3. Determination

A. The use of another person's registered trademark on goods identical with or similar to the designated goods constitutes an act of infringing another person's trademark right. However, if it is impossible to recognize another person's registered trademark's use of the trademark because it does not aim at indicating its source, which is the essential function of the trademark, even if it is used by another person's registered trademark.