(a) Whether the transferee has opposing power in cases where a third party who is aware of the transfer of author's property right has completed the contract to establish the publication right and the registration of the transfer between the transfer and the transfer without registering the transfer;

(b) Whether the trademark right has an effect on any title used in the book;

A. As a result of completing the translation of a foreign author’s work, if: (a) the person who originally acquired the copyright of the derivative work transferred the author’s property right of the derivative work to Party A; (b) but Company A did not register the assignment of the author’s property right; (c) entered into a contract with the copyright holder of the derivative work that Party B knew of the transfer of the author’s property right to publish the derivative work partially or additionally, and completed the registration thereof, Party A cannot set up against Party B by transfer of the copyright.

B. The title of the book is not generally used, but is not a direct display of the content of the work, and unless it is used as a trademark of books or films, etc., it has the ability to distinguish the content of the work from other goods and functions as a mark of origin. However, if these letters are used as a title of the book, they naturally indicate the name or content of the work as a creative production. A person who intends to publish and sell such creative works has the same character as the ordinary name or the official trademark indicating the quality, unless it is contrary to the Copyright Act, and thus, the use as a title does not affect the trademark right in accordance with Article 51 of the Trademark Act.

(a) Articles 5, 10(2), and 52 subparag. 1(b) of the Copyright Act; Article 51 of the Trademark Act

B. Supreme Court Decision 92Hu452 delivered on November 10, 1992

Applicant

Respondent

Seoul High Court Decision 94Na23267 delivered on December 16, 1994

The appeal is dismissed.

The costs of appeal shall be assessed against the petitioner.

We examine the grounds of appeal.

1. A creative work translated into another person’s original work shall be protected as an independent work (Article 5 of the Copyright Act); a work shall naturally be created from the time of the work without requiring any procedure or form implementation due to its nature (Article 10(2)); and a transfer of author’s property right shall not be effective against a third party unless it is registered (Article 52 subparag. 1 of the Copyright Act).

The court below held that, upon completion of the translation of the "production" written by non-party 2, a Chinese author, the non-applicant 1, it cannot oppose the respondent with the acquisition of copyright on March 31, 1987. In light of records and relevant statutes, the court below's aforementioned determination of the court below is just, and there is no error of law such as misapprehension of legal principles or incomplete deliberation, etc. in the misapprehension of legal principles as to the transfer of the above author's property right, even though the non-applicant 1 transferred the author's property right on the derivative copyrighted works which he acquired originally through a contract of March 31, 1987.

2. The title of the book is not generally used, but directly expressing the contents of the work, and unless it is used as a trademark such as books or films, etc., it shall be deemed that the person has the ability to distinguish the contents of the work from other goods and has the function of indicating its source. However, if these letters are used as a title of the book, it shall naturally indicate the name or content of the work as a creative production. A person who intends to publish and manufacture such creative works has the same character as an ordinary name or a official trademark indicating the quality as that of the work, unless it is contrary to the Copyright Act, and thus, the use as a title shall not have the effect of trademark right under Article 51 of the Trademark Act.

The decision of the court below to the same purport is just, and there is no error of law as pointed out in the theory of lawsuit. There is no ground for this issue.

3. Therefore, the appeal is dismissed and all 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 Lee Jae-soo (Presiding Justice)