[1] Whether the trademark constitutes “a trademark widely known to the Republic of Korea” under Article 2 subparag. 1(a) of the Unfair Competition Prevention and Trade Secret Protection Act (negative)

[2] In a case where the defendant was indicted for violating the Unfair Competition Prevention and Trade Secret Protection Act on the ground that he imported and sold Cheongba, a trademark similar to Gap corporation's Cheongba, widely known in Korea, thereby causing confusion with others' goods, the case holding that the court below erred in the misapprehension of legal principles and incomplete deliberation on the ground that it is difficult to view the above trademark to have reached an "a serious degree" without examining whether it reached the "level of Cheongba"

[1] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 1 (a) and Article 18 (3) 1 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 94Do399 delivered on July 14, 1995 (Gong1995Ha, 2848), Supreme Court Decision 96Ma675 delivered on April 24, 1997 (Gong1997Sang, 1551) Supreme Court Decision 2001Da5295 delivered on June 13, 2003, Supreme Court Decision 2001Da76861 Delivered on September 26, 2003

Defendant

Prosecutor

Suwon District Court Decision 2011No2270 decided July 14, 2011

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

Judgment ex officio is made.

1. Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) provides that “the act of causing confusion with another person’s goods by using any goods identical or similar to another person’s name, trade name, trademark, container or package widely known in the Republic of Korea, or other goods marked with another person’s goods, or by selling, distributing, importing, or exporting goods using such goods,” as one of the unfair competition acts. In order to constitute “the goods widely known in the Republic of Korea” as referred to in this provision, it is insufficient to the extent that the said mark, etc. was used simply, and the degree of acquiring superior status through continuous use, quality improvement, advertisement, etc., but it is sufficient to say that it does not reach “the extent of name,” which is required to be known to all persons in the Republic of Korea, and it is sufficient to deem that it reaches “the level of the so-called “the country,” known among traders or consumers within a certain domestic area (see, e.g., Supreme Court Decisions 94Do3999, Jul. 14, 2014, 2003

2. According to the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that it is difficult to view the trademark of this case to have reached the degree of well-knownness of the trademark of this case, without examining whether the trademark of this case reaches the degree of well-knownness among domestic traders or consumers, without considering whether the trademark of this case has reached the degree of well-knownness among domestic traders or consumers, as provided by Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act, beyond the "level of well-knownness" as provided by Article 2 subparagraph 1 (c) of the Unfair Competition Prevention Act.

Such determination by the court below is erroneous in the misapprehension of legal principles as to the act of confusion between the subject of goods as stipulated in Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act and failing to exhaust all necessary deliberations as to whether the trademark of this case is well-known.

3. The judgment of the court below is reversed without examining the legitimacy of the grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)