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(영문) 대법원 2005. 8. 25. 선고 2005다22770 판결
[가처분이의][공2005.10.1.(235),1568]
Main Issues

Where trademark rights have effect on any title used in the book;

Summary of Judgment

Unless there exist special circumstances, subparagraph 1 of the book shall clearly indicate the name or content of the work in question as a creative production, and any person who intends to publish, manufacture, and sell such creative works shall be entitled to use by anyone unless it conflicts with the Copyright Act, and has the same character as the ordinary name or the official trademark indicating the quality. Therefore, the use as a title shall not affect trademark rights under Article 51 of the Trademark Act in principle. However, in special cases, such as the use of another person's registered trademark as a periodical or screen, it may be recognized as an identification mark indicating the source of the book, and thus, it shall not be deemed that the trademark rights are not effective even in such cases.

[Reference Provisions]

Articles 50, 51, 65, and 66(1)1 of the Trademark Act

Reference Cases

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Appellant, Appellant

Applicant

Respondent, Appellee

Social deliberation loan Co., Ltd. (Law Firm Kim & Lee, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant

Judgment of remand

Supreme Court Decision 2002Da56024 Delivered on July 9, 2004

Judgment of the lower court

Seoul High Court Decision 2004Na51049 delivered on March 22, 2005

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

1. The judgment of the court below

According to the reasoning of the judgment below, since the applicant entered into a contract with the respondent on May 26, 199 to establish an exclusive publication right of the above work with the period of three years, and according to this publication contract, the applicant's act of using the trademark "(6) No. 1 of the attached list No. 1 of the court below's decision No. 1 of "Mad" (hereinafter referred to as "Decree"), which is different from the applicant's trademark registration No. 6 of the above "No. 1 of the Trademark Act", and the applicant's act of using the trademark No. 1 of this case's No. 6 of this case's "No. 1 of this case's trademark registration No. 6 of this case's trademark registration No. 1 of this case's "No. 6 of this case's trademark registration No. 1 of this case's 1 of this case's trademark registration No. 7 of this case's 'No. 1 of this case' as a part of the applicant'. 1 of this case'.

2. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

If a registered trademark of another person is used on goods identical with or similar to the designated goods, it constitutes an act of infringing another person's trademark right (see Article 66 (1) of the Trademark Act), and a person who intends to publish, manufacture, and sell a creative work is entitled to use and has the same nature as a common name or an official trademark indicating quality, unless it conflicts with the Copyright Act, and thus, it is a principle that the use of a registered trademark of another person is not effective under Article 51 of the Trademark Act (see Supreme Court Decision 95Da3381 delivered on September 26, 1995). In special cases, such as the use of a registered trademark of another person as a periodical or business title, the use of a registered trademark of another person may be perceived as a mark indicating the source of the goods in the actual transactional field, and thus, it cannot be viewed that it does not extend to such cases.

According to the health stand, the court below's finding that the respondent used the book of this case as part of the respondent's use of the registered trademark in the form of No. 1, 1, 1, 2, 2, 2, 3, 3, 3, 3, 4, 3, 4, 5, 2, 2, 3, 4, 2, 2, 3, 2, 3, 3, 4, 4, 2, 2, 3, 2, 3, 3, 3, 4, 2, 3, 2, 3, 3, 4, 2, 3, 2, 3, 2, 3, 3, 4, 2, 3, 3, 4, 2, 2, 2, 3, 3, 3, 4, 4, 5, 5, 1, 2, 2, 2, 3, 3, 3, 4, 1, 1, 3.

Nevertheless, the court below erred by misapprehending the legal principles on the use of a trademark in the name of a book, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, without any deliberation and determination as to whether the respondent uses the applicant's registered trademark as a part of the book title, as a part of the book title, and without any examination and determination as to whether the respondent uses the applicant's registered trademark as a part of the book title, the effect of the trademark right does not naturally extend to the use of the book as a book title.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, 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 Shin Hyun-chul (Presiding Justice)

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심급 사건
-서울고등법원 2002.9.4.선고 2002나3596
-서울고등법원 2005.3.22.선고 2004나51049
-서울고등법원 2006.5.3.선고 2005나82491
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