[1] In a claim for damages arising from infringement of trademark rights, whether the occurrence of damages is presumed to have occurred in the event of infringement under Article 67(1) of the Trademark Act (negative), and the degree of proof of the occurrence of damages

[2] The method of calculating profits suffered by the infringer in a claim for damages arising from infringement of trademark rights, and whether it is presumed as the amount of damages suffered by the infringer (affirmative)

[1] Article 67 (1) of the Trademark Act provides that where a trademark right holder claims compensation for damages caused by infringement of a trademark right, etc., the amount of profits shall be presumed to be the amount of damages suffered by the trademark right holder, etc. in light of the difficulty in proving the amount of damages, and where the infringer gains profits from the infringement, the amount of profits shall be presumed to be the amount of damages suffered by the trademark right holder, etc., and where the trademark right holder infringement occurred, it shall not be deemed to be the purport of estimating the amount of damages caused by the infringement. Therefore, in order for the trademark right holder to be subject to the above provision to use the registered trademark as a business and to prove and prove that the trademark holder actually suffered losses due to the infringement of the trademark right, it is necessary to assert and prove that the trademark right holder uses the registered trademark as his/her own business and actually suffered losses due to the infringement of the trademark right. However, in light of the purport of the above provision, it is sufficient to claim and prove the existence of the concerns or probability about the occurrence of damages.

[2] In a case where a trademark right holder claims compensation against a person who infringed the trademark right pursuant to Article 67 (1) of the Trademark Act, profits gained by the infringer should be calculated by multiplying the total sales amount of the infringing product by the net profit rate, or by multiplying the sales quantity of the product by the net profit per unit. However, in the infringement of a trademark right, the infringer is engaged in the same kind of business as the trademark right holder, while he/she takes advantage of the trademark owner's credit in the trademark, and barring any special circumstance, considering the capital and effort invested by the trademark right holder to obtain the above credit, the above net profit rate of the infringer can be confirmed to be smaller than the net profit rate of the trademark owner. Thus, the infringer's sales amount can be calculated by multiplying the infringing person's sales amount by the above net profit rate of the trademark right holder. Such profits calculated as above should be the net profit of the infringer, and the profits gained by the infringer regardless of the quality, technology, design, credit sales of the product, policies for the use of the trademark, etc.

[1] Article 67(1) of the Trademark Act, Article 750 of the Civil Act, Article 261 of the Civil Procedure Act / [2] Article 67(1) of the Trademark Act, Article 750 of the Civil Act

[1] [2] Supreme Court Decision 91Da23776 delivered on February 25, 1992 (Gong192, 1124)

Busan High Court Decision 200Na1447 delivered on August 1, 200

Defendant 1 and two others (Attorney Jeong-hee, Counsel for the defendant-appellant)

Seoul High Court Decision 95Na9060 delivered on August 28, 1996

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. Article 67 (1) of the Trademark Act provides that where a trademark right holder claims compensation for damages caused by infringement of a trademark right, etc., the amount of profits shall be presumed to be the amount of damages suffered by the trademark right holder, etc. in consideration of the difficulty in proving the amount of damages, and where the infringer gains profits from the infringement, the amount of profits shall be presumed to be the amount of damages suffered by the trademark right holder, etc., and where the trademark right holder infringement occurred, it shall not be deemed to be the purport of estimating the occurrence of damages caused by the infringement. Thus, in order for the trademark right holder to be subject to the above provision to use the registered trademark as a business and to assert and prove that the trademark holder actually suffered losses due to the infringement of the trademark right. However, in light of the purport of the above provision, it is sufficient to assert and prove the possibility of the occurrence of damages or the existence of the possibility in relation to the above occurrence of damages. Accordingly, if the trademark right holder proves that he/she carries on the same kind of business as the infringer, it shall be presumed that he/she actually suffered

원심은, 상표권자인 원고가 "ⓧ SUNX"라는 이 사건 등록상표를 부착한 제품을 그 계열회사인 소외 산크스무역 주식회사를 통하여 위 산크스무역 주식회사와 사이에 대한민국 내에서의 독점판매대리점 계약을 체결한 피고 피고 2 주식회사에게 공급하여 온 사실, 그런데 피고들이 이 사건 등록상표와 유사한 "SUNKS"라는 표장을 원고의 제품과 유사한 제품에 부착, 판매하여 온 사실을 인정한 다음, 피고들은 공동하여 이 사건 등록상표를 부착, 판매하는 원고의 상품과 같은 종류의 상품에 위 등록상표와 유사한 위 표장을 부착, 판매함으로써 원고의 등록상표권을 침해하였다고 할 것이므로 각자 상표권자인 원고가 입은 손해를 배상할 책임이 있다고 판단하였는바, 위와 같은 원심의 판단은 정당하고, 거기에 소론과 같이 상표권 침해로 인한 손해의 발생에 관한 상표법의 법리를 오해한 위법이 있다고 할 수 없다. 논지는 이유 없다.

2. Where a trademark right holder claims compensation against a person who has infringed a trademark right pursuant to Article 67(1) of the Trademark Act, the infringer's profit should be calculated by multiplying the total sales amount of the infringing product by net profit rate or by multiplying the sales quantity of the product by net profit per unit. However, in the infringement of a trademark right, the infringer engages in the same kind of business as the trademark right holder and takes advantage of the trademark right holder's credit, while taking into account the profits and effort invested by the trademark right holder to obtain the above credit, the above net profit rate of the infringer can be confirmed as less than the net profit rate of the trademark right holder's sales of the relevant trademark product, barring special circumstances. Thus, the infringer's profit ratio can be calculated by multiplying the sales amount of the infringer's profit by the above net profit rate of the trademark right holder's trademark owner. Such profits calculated as above should be the net profit of the infringer, regardless of the quality of the trademark, technology, credit and sales of the product, and profits generated from the infringement of the trademark right owner's profit regardless of the trademark right holder's profit.

According to the reasoning of the judgment below, in determining the scope of the defendants' liability for damages caused by infringement of the above trademark right pursuant to Article 67 (1) of the Trademark Act, the court below acknowledged that the total sales amount of non-party 1 company operated by defendant 3 from 1990 to 1993, which was infringed upon the trademark right by macroscopic evidence, are 945,311,750 won in total, and 1/5 of them are the sales amount of the goods bearing the above similar mark, and that the operating profit ratio of the plaintiff company during the same period is 7.608% in total, barring any special circumstance, the court below determined that the amount calculated by multiplying the sales amount of the goods bearing the above similar mark by the above operating profit ratio of the plaintiff company was the amount of damages caused by the plaintiff company's infringement of the above trademark right. The court below rejected the defendants' assertion that there was no error in the misapprehension of the legal principles as to the plaintiff's assertion that the above increase in the sales amount of the plaintiff's products by offering convenience for purchase with the plaintiff's trademark right.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)