[1] Where a mark similar to another person's registered trademark is used to guide and explain the content of the book rather than to indicate the source, whether it may be deemed as a trademark infringement (negative)

[2] The case holding that where "Winows", which is another person's registered trademark, is indicated in the product use manual, customer registration card, reference note, etc., it is merely for guiding and explaining the contents described in the use manual, customer registration card, and reference note, and it cannot be deemed that it is used as the product's source indication

[1] The use of a mark similar to the registered trademark of another person for goods identical with or similar to the designated goods constitutes an act of infringing another person's trademark right. However, even if it is used for a mark similar to the registered trademark of another person, if it is not for indicating the source that it is an essential function of the trademark, but for use in order to guide and explain books, etc., it shall not be deemed an act of infringing another person's trademark right.

[2] The case holding that where "Winows", which is another person's registered trademark, is indicated in the product use manual, customer registration card, reference note, etc., it is merely an indication of the name of a computer software program and it cannot be deemed that it is used as a product's source indication

[1] Articles 66 subparag. 1 and 93 of the Trademark Act / [2] Articles 66 subparag. 1 and 93 of the Trademark Act

[1] Supreme Court Decision 96Do139 delivered on September 6, 1996 (Gong1996Ha, 3077) Supreme Court Decision 96Do1424 delivered on February 14, 1997 (Gong1997Sang, 830)

Seoul High Court Decision 200

Microfran et al. (Defendants, Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na76986 delivered on October 1, 2002

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

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

If a mark similar to the registered trademark of another person is used for goods identical with or similar to the designated goods of another person, it constitutes an act of infringing another person's trademark right. However, even if it is used for a mark similar to the registered trademark of another person, if it is not for the purpose of indicating the source that it is the essential function of the trademark, but for the purpose of guiding and explaining the contents of books, etc., it cannot be deemed an act of infringing another person's trademark right (see Supreme Court Decision 96Do1424 delivered on February 14, 1997). In order to use the trademark, it shall be used in a way that it is specified in a specific relationship with the designated goods to distinguish the goods of another person from the goods of another person (see Supreme Court Decision 98Hu1594 delivered on February 23, 199).

In light of the facts duly established by the court below, the use and contents of this case's manual, customer registration card, reference note, etc., and the location, size and use manual, and customer registration card, etc. indicated in attached Table 1 list 2 through 5 of the court below's decision (hereinafter "each mark of this case") are indicated in the use manual of this case, customer registration card, reference note, etc., or customer registration card, the trade name of defendant Microf or defendant Microfrate Co., Ltd. and the trade name of defendant 2's publishing company in the case of reference, each mark of this case is indicated in the name of the computer software program and it cannot be deemed that it was used as a source indication only for guiding and explaining the contents described in the use manual, customer registration card, and reference note, and it cannot be deemed that the defendants used as a trademark of this case without any reason for distinguishing the goods of others. Thus, it is not clear that the defendants used the mark of this case as a trademark of this case as a trademark of this case.

Although the reasoning of the court below is somewhat insufficient or inappropriate, the conclusion that the defendants dismissed the plaintiff's claim on the ground that the defendants' use of each of the marks in this case's use manual, customer registration card, and reference note does not infringe the plaintiff's trademark right. Therefore, it cannot be deemed that there was an error of law by failing to exhaust all necessary deliberations and by misapprehending the legal principles on the use of trademark and trademark, etc., as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case, since they differ from the case.

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 Shin Shin-chul (Presiding Justice)