[1] The number of crimes of infringement of trademark rights where an act of infringement of trademark rights has continued to be committed on several registered trademarks (=one inclusive of each registered trademark 1)

[2] In a case where the defendant was prosecuted for infringing Gap's trademark right by selling goods bearing a forged trademark, the case holding that since the crime of infringing Eul's trademark right and the part of infringing Eul's trademark right's trademark right's trademark right's trademark infringement as to Byung among the facts charged is different from the registered trademark which is the subject of infringement, it cannot be deemed that two crimes are committed by combining two crimes even if the trademark right holder and the mark are identical

[1] In a case where an act of trademark infringement under Article 93 of the Trademark Act was continued with respect to several registered trademarks, one crime is established by combining each one of the registered trademarks. Thus, barring any special circumstance, it cannot be deemed that a single crime is established by combining several trademark infringement acts different from the registered trademarks on the ground that the trademark right holder and the mark are identical.

[2] In a case where Defendant was prosecuted for infringing upon Party A’s trademark right by selling forged goods bearing a trademark, the case holding that the lower court erred by misapprehending the legal principles as to the number of crimes of infringement of trademark rights, since the crime of infringement of trademark rights against Party B whose judgment of conviction was finalized and the part of infringement of trademark rights against Party C among the facts charged constitute separate trademark rights infringement on the grounds that the registered trademark is different from the registered trademark subject to infringement, even if the trademark right holder and the mark are identical, the two crimes cannot be deemed to be constituted by combining two crimes, and thus, the final judgment of the lower court

[1] Article 37 of the Criminal Act, Article 93 of the Trademark Act / [2] Article 37 of the Criminal Act, Article 93 of the Trademark Act, Article 326 subparagraph 1 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Central District Court Decision 2009No2119 Decided September 18, 2009

The remaining parts of the judgment of the court below excluding the acquittal on the violation of the Trademark Act as stated in paragraphs 1 through 58, 61, 65 through 67 of the crime sight table 1 are all reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the Trademark Act as stated in Articles 59 and 60 of the List of Crimes at the time of original adjudication (attached Form 1)

In a case where an act of infringement of trademark rights under Article 93 of the Trademark Act was continued with respect to several registered trademarks, one crime is established by combining each trademark right holder and each other. Thus, barring any special circumstance, it cannot be deemed that one crime is constituted by combining several acts of infringement of trademark rights different from the trademark right holder and each other on the ground that the trademark is identical

In light of the above legal principles and records.

According to the evidence duly admitted by the court below, the defendant, on Sep. 11, 2008, received the trademark registration (registration number 2 omitted), " "" using new shoes, such as sandbox, as designated goods on Nov. 20, 1986, and the trademark registration (registration number 2 omitted) on Sep. 7, 2001, using such new shoes as "Nexpin," as designated goods. The defendant, on Sep. 11, 2008, was sentenced to a suspended sentence of imprisonment for up to two years for violation of the Trademark Act, and on Sep. 19, 208, the final judgment became final and conclusive on Sep. 20, 2008, on Sep. 208, 2008, on which the defendant violated the trademark right of "Nexpin," and on Sept. 28, 2008, he did not infringe on the trademark right of "Nexpin," by means of the Internet mold.

Therefore, from March 15, 2008 to August 14, 2008, the Defendant, in collusion with the Nonindicted Party, sold a total of KRW 87,773,730 (which is equivalent to KRW 300,95,00,00) in total to those who, as indicated in Articles 59 and 60 of the List of Crimes, could not know about the names of the original adjudication (attached Form 1) through the Internet shopping mall during the period from March 15, 2008 to August 14, 2008, the Defendant violated the trademark right of “” (registration number 2 omitted) and the criminal facts for which the said judgment became final and conclusive are different from the registered trademark subject to such infringement, thereby constituting separate trademark infringement. Thus, even if the trademark right holder and the mark are the same, it cannot be deemed that the above facts charged and the above final and conclusive judgment constitute one crime.

Nevertheless, the lower court determined that even if the trademark right holder and the mark are identical to the designated goods, the crime of the above facts charged and the final judgment are related to the blanket crime, and that the effect of the above final judgment extends to the above facts charged, thereby rendering a judgment of acquittal as to the above facts charged pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act. The lower court erred by misapprehending the legal doctrine on the number of crimes of trademark infringement, which affected the conclusion of the judgment, and the allegation in the grounds of appeal

2. As to the remaining scope of appeal

Of the judgment of the court below, the prosecutor appealed as to the acquittal of the violation of the Trademark Act as stated in paragraphs 1 through 58, 61, 65 through 67 of the crime sight list and the part of the judgment (attached Form 2) as to the acquittal of the reason for the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment as stated in paragraphs 1 through 45 of the crime sight list. However, there is no statement in the petition of appeal and there is no statement in the grounds for appeal.

3. Scope of reversal

For the above reasons, the part of the judgment of the court below on acquittal of a violation of the Trademark Act as stated in Articles 59 and 60 of the List of Crimes (attached Form 1) shall be reversed, and the part on acquittal of a violation of the Trademark Act as stipulated in the former part of Article 37 of the Criminal Act shall be reversed, among the judgment of the court below that should be sentenced one punishment in relation to concurrent crimes as stated in the former part of Article 37 of the Criminal Act, the part on conviction of a violation of the Trademark Act as stated in Articles 62 through 64, 68 through 71 of the List of Crimes (attached Form 2) and the part on conviction of a violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment as stated in Articles 46 through 49 of the List of Crimes 2 shall be reversed, and the part on acquittal of a violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment, which is related to

4. Conclusion

Therefore, the remaining parts of the judgment of the court below excluding the acquittal part on the violation of the Trademark Act as stated in Articles 1 through 58, 61, 65 through 67 of the List of Offenses Act are all reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)