[1] Whether a trademark use, which is not used as a pattern indicating the source of another product, constitutes an infringement of trademark rights (negative)

[2] On the back of a name tag, the act of indicating the trademark on the trade statement, delivering it to the other party to the transaction, and displaying the trademark on the newspaper and advertising constitutes an act of using the trademark under Article 2 (1) 6 (c) of the Trademark Act

[3] The case holding that an import declaration submitted to a customs office cannot be deemed as an act of using a trademark under the Trademark Act on the ground that it is difficult to view it as a transaction document delivered between the parties to the transaction

[1] Even if a trademark constitutes an act of using a trademark under the Trademark Act, it does not constitute an infringement of trademark rights, in principle, in the case of a trademark which is not used in the form of indicating the source of another product.

[2] On the back of a name tag, the act of indicating the trademark on the trade statement, delivering it to the other party to the transaction, and displaying the trademark on the newspaper, and the act of advertising constitutes an act of using the trademark under Article 2 (1) 6 (c) of the Trademark Act

[3] The case holding that the act of using a trademark under the Trademark Act cannot be deemed as an act of using a trademark on the import declaration, since it is difficult to view it as a transaction document delivered between the parties to the transaction

[1] Article 2 (1) 6 of the Trademark Act / [2] Article 2 (1) 6 of the Trademark Act / [3] Article 2 (1) 6 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), Supreme Court Decision 2000Hu68 delivered on December 22, 2000, Supreme Court Decision 98Do2743 delivered on December 26, 200 (Gong2001Sang, 406)

Applicant

Respondent 1 and 3 others

Seoul High Court Order 98Ra373 dated May 23, 2000

The part against the respondent 1, Respondent 3, and Respondent 4 among the part against the petitioner in the judgment of the court below is reversed, and that part of the case is remanded to the Seoul High Court. The reappeal against the respondent 2 is dismissed. The costs of the reappeal against the reappeal shall be borne by the petitioner.

The grounds of reappeal are examined.

1. Summary of the judgment of the court below on the petition against the respondent 1, respondent 2, respondent 3, and respondent 4

A. According to the records, the fact that the respondent 1 sold the Respondents and delivered them to the buyer by using the Respondents with the Respondents "Fatchings" (No. 40-1, 2). The fact that the respondent 2 imported goods from the Thai company and submitted to the customs office by the Respondent 2 is stated in the product column of the import declaration document submitted by the Respondent 29-2) (No. 29-2). The fact that the Respondent 3 stated the Respondent 3 as "Fatchings" in the transaction statement issued by the Respondent 3 to the Claimants (No. 41-3), and the fact that the Respondent 4 is indicated as "Fatsings" as one of its products while advertising the Respondents in the examination (No. 9-3).

B. The respondent's act is merely used by the respondent as part of the business means in the course of selling, importing, and advertising the product, and it cannot be deemed that the respondent used it as a trademark indicating the source of a specific product. Thus, it does not constitute an advertising use of a trademark under the Trademark Act.

C. Therefore, even if the respondent sold the synthetic satch as a product, not a authentic product, the respondent does not constitute trademark infringement. Therefore, the respondent's application against the respondent is without merit without further determination.

2. Judgment of the Supreme Court

A. The term "use of a trademark" means an act of indicating a trademark on goods or packages of goods under Article 2 (1) 6 of the Trademark Act, (b) an act of transferring or delivering it to the goods or packages of goods, or an act of displaying or distributing a trademark on (c) an advertisement, price list, transaction document, signboard, or label for such purpose. However, even though a trademark constitutes an act of using a trademark under the Trademark Act, if it is not used in the form of expressing the origin of goods, it does not constitute an infringement of trademark in principle (see, e.g., Supreme Court Decisions 96Do1424, Feb. 14, 1997; 98Do2743, Dec. 26, 2000).

In addition, the "transaction documents" under Article 2 (1) 6 (c) of the Trademark Act includes the order documents, delivery documents, invoices, shipping guide documents, goods receipt, car spons, etc. provided for the transaction.

B. Determination on the Respondent 1, Respondent 3, and Respondent 4

According to the facts found by the court below, the respondent 1 sold emeral emeral and delivered emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emers to buyers. In this case, the emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeral emers emers

In the case of the respondent 3, since it constitutes an act of using a trademark as seen above, since it constitutes an act of using a trademark, and the respondent 4 further, it is also deemed an act of using a trademark since it displayed the "brudation machine" as one of the products handled in the precious metal field newspaper as one of the products handled in the precious metal field newspaper and advertised its own company, it also constitutes an act of using the trademark (However, according to the records, the above advertisements of precious metal field newspaper are marked as "brud white, (main green belt) green belt industry," and the written application for provisional disposition of this case also includes the "representative of the green belt (main green belt)" after indicating the respondent 4, so it is unclear whether the subject of the advertisement is an individual or a company. Therefore, it is necessary to vindicate it)

The court below determined that the respondent's act is merely a use of the respondent's name as a part of business means in the course of selling or advertising the product, and it cannot be deemed that the respondent used the trademark as a mark indicating the source of a specific product. However, since the use of the trademark is naturally premised on the fact that the trademark is conducted as a business and the trademark used by the respondent is used as a mark indicating the source of a specific product, the above judgment of the court below is erroneous in the misapprehension of legal principles as to the use of the trademark, and it cannot be said that the respondent's act was used as a mark indicating the source of the specific product, and it is not sufficient to examine whether the Respondent's act was a true product from the trademark right holder of this case, based on such misunderstanding of legal principles.

The ground for reappeal pointing this out is with merit.

C. Determination on the Respondent 2

According to the facts found by the court below, the respondent 2 stated the product column in the import declaration submitted to the customs office by importing goods from the Thai company as "CUT BITN SYNHEIC", and it is difficult to regard the import declaration submitted to the customs office as a transaction document delivered between the parties to the transaction, and therefore, it cannot be said that the use of a trademark under the Trademark Act is an act of using a trademark on the import declaration, since it is difficult to regard it as a transaction document delivered

The judgment of the court below on this issue is not proper, but it is eventually justified, and there is no violation of law as otherwise alleged in the ground of reappeal.

3. Conclusion

Therefore, among the parts against the applicant in the judgment of the court below, those against the respondent 1, 3, and 4 are reversed, and those parts of the case are remanded to the court below for a new trial and determination. The re-appeal against the respondent 2 are dismissed. The costs of re-appeal against the re-appeal are to be borne by the applicant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)