[1] The criteria and method of determining whether the mark of goods or business mark of another person is widely known domestically in determining unfair competition under Article 2 subparagraph 1 (a) and (b) of the Unfair Competition Prevention Act

[2] The case holding that since the part of "Yindo rice farm" among the trade names "Yindo rice farm" is widely known, it cannot be an essential part to distinguish the source of goods or the main body of business, and the part "Yindo rice farm" is merely an ordinary name or a tolerance phrase that is the place where rice farm is manufactured and sold, and thus, it cannot be recognized as distinguishing between the source of goods or the main body of business, even though it is merely an ordinary name or tolerance phrase that it is the place where rice farm is manufactured and sold, it can not be recognized as distinguishing the source of goods or the main body of business

[1] In determining unfair competition under Article 2 subparagraph 1 (a) and (b) of the Unfair Competition Prevention Act, whether a trademark of another person's goods or a business mark has been widely known in the Republic of Korea is based on the period of use, method, pattern, quantity of use, scope of transaction, etc., the actual condition of the transaction of the goods, and whether it is objectively widely known under social norms. In a case where a trademark or a business mark made by combination of letters or numbers with no or weak distinctiveness becomes widely widely known in the Republic of Korea as a result of the use of the trademark or a business mark, the standard should be strictly interpreted and applied. Therefore, the mere fact that such a trademark or a business mark has been advertised and advertised to a certain extent cannot be presumed, and specifically, it should be clearly recognized by evidence that the trademark or the business mark itself has been clearly perceived among consumers. In addition, such a legal principle is equally applied to determining whether a part of its constituent parts is essential.

[2] The case holding that since the part of "Yindo rice farm" among the trade names "Yindo rice farm" is widely known, it cannot be an essential part to distinguish the source of goods or the main body of business, and the part "Yindo rice farm" is merely an ordinary name or a tolerance phrase that is the place where rice farm is manufactured and sold, and thus, it cannot be recognized as distinguishing between the source of goods or the main body of business, even though it is merely an ordinary name or tolerance phrase that it is the place where rice farm is manufactured and sold, it can not be recognized as distinguishing the source of goods or the main body of business

[1] Article 2 subparagraph 1 (a) and (b) of the Unfair Competition Prevention Act / [2] Article 2 subparagraph 1 (a) and (b) of the Unfair Competition Prevention Act

[1] Supreme Court Decision 9Hu1645 delivered on September 17, 199 (Gong1999Ha, 2215), Supreme Court Decision 2007Do558 delivered on November 29, 2007, Supreme Court Decision 2007Do10562 Delivered on September 11, 2008 (Gong2008Ha, 1408), Supreme Court Decision 2008Do11704 Delivered on November 12, 2009

Plaintiff (Attorney Cho Ho-ho, Counsel for defendant-appellant)

Defendant

Seoul Central District Court Decision 2009Gahap96729 Decided November 30, 2009

June 9, 2010

The part against the defendant in the judgment of the first instance shall be revoked, and the corresponding plaintiff's claim shall be dismissed.

All costs of the lawsuit shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 20 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

The same shall apply to the order.

1. Basic facts

[Evidence] Facts without dispute, Gap evidence Nos. 1, 4, 7, Eul evidence Nos. 1 and 2 (including additional numbers), the purport of the whole pleadings

A. Details of the Plaintiff’s mutual use

The Plaintiff, from March 20, 1986 to around 452, 1986, as the name of the non-party, who was operated a female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female female in his name, the Plaintiff changed its business registration from around 2000 to its own name, and changed its trade name from around 202 to " female female female female female female female female female female female female female female female female female female female female female female female female female female female family female. The location of its head office around September 21, 2004 is 16, Seocho-gu, Seoul, and 301 under the ground of its business purpose is combined with the business purpose, and it was established and operated separately from the name of the corporation in the name of the Plaintiff's own name, and from around that time, the Plaintiff's incorporation was registered.

B. Details of the Plaintiff’s registration of service mark

In addition, on December 5, 2002, the Plaintiff filed an application for the service mark listed in the annexed Table 1 and completed the registration on February 20, 2004, and filed an application for the service mark listed in the annexed Table 2 on March 9, 2005 and completed the registration on February 3, 2006, and filed an application for the trademark listed in the annexed Table 3 on December 10, 2002, but rejected the registration.

C. The defendant's trade name use process

From April 10, 2003, the Defendant operated the Seocho-gu Seoul Metropolitan Government 1310-5 Seocho-gu 1st floor 27 of Seocho-gu Seoul Metropolitan Government Seocho-dong 1310-5 Seodong 1st floor 27, “Yedodok rice house.” The Defendant’s signboards and sales slips used the Defendant’s trade name “Ydododok rice house”, but the packaging boxes used the trade name by indicating it as “ndododok rice house.”

(d) Progress of the relevant case;

(1) On March 1, 2009, the Plaintiff filed a provisional injunction against infringement of trademark rights against the Defendant on the Seoul Central District Court case No. 2009Kahap834. On April 1, 2009, the Plaintiff and the Defendant filed an application for provisional injunction against infringement of trademark rights. On April 1, 2009, the case of provisional injunction was concluded with the following purport: “The Defendant does not use the trade name, outside signboards, propaganda, name, packaging, packaging and shopping bags indicating the above trade name between the Plaintiff and the Defendant, with respect to the manufacture, distribution, and sale of rice tea in the 1st floor of Seocho-gu Seoul, Seocho-gu, Seocho-gu, Seoul, 1310-5, Youngdong, 1310-5, 27.”

(2) On September 21, 2009, the Defendant changed the trade name from “Seodok rice House” to “Seododok rice farm.” The Defendant discarded signboards, packaging boxes, etc. described as “Seodok rice house” and “Seodok rice house”. Accordingly, in this case, the Plaintiff withdrawn a claim for prohibition of use of the remaining trade name, other than the claim for damages, and the claim for prohibition of infringement of service marks from the second date for pleading of the first instance trial on October 26, 2009.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff is liable to compensate the Plaintiff for damages, given that the Defendant committed an unfair competition act under the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”), by using the Plaintiff’s well-known and well-known trade name, and a trade name and service mark similar to the service mark listed in attached Table 1, and causing ordinary consumers to misunderstand the Defendant’s goods as the Plaintiff’s goods or to mislead the Defendant’s business as the Plaintiff’s business.

B. Determination

(1) Determination criteria

An act of unfair competition under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act means an act of causing confusion with another person's business facilities or activities by using goods identical or similar to another person's name, trade name, trademark, or container or package of goods, or any other mark indicating another person's goods (hereinafter referred to as "goods mark"), which is actually widely known in the Republic of Korea, or by selling goods using such a mark, or causing confusion with another person's goods. An act of unfair competition under subparagraph 1 (b) of the same Article means an act of causing confusion with another person's business facilities or activities by using goods identical or similar to another person's name, trade name, or mark widely known in the Republic of Korea (hereinafter referred to as "business mark"). In other words, an act of unfair competition under subparagraph

However, in the case of claiming compensation for damages or credit recovery due to such unfair competitive act, the identification of the claimant at the time when the other party caused confusion or mistake should be widely known in Korea.

Meanwhile, in determining the unfair competitive act under Article 2 subparag. 1(a) and (b) of the Unfair Competition Prevention Act, whether the mark of another person’s goods or business mark has been widely known to the public in the Republic of Korea is based on the period of use, method, pattern, quantity of use, scope of transaction, etc., actual circumstances of the transaction of the goods, and whether it is objectively widely known under social norms. In a case where the mark of goods or business mark made by combination of letters or numbers that have no or weak distinctiveness becomes widely known to the public in the Republic of Korea as a result of the use of the mark or business mark, the standard should be strictly interpreted. Therefore, the mere fact that such mark or business mark has been advertised and advertised to a certain extent cannot be presumed, and specifically, it should be clearly recognized by evidence that the mark or business mark itself has been clearly perceived among consumers (see Supreme Court Decisions 9Hu1645, Sept. 17, 199; 2007Do10562, Sept. 11, 2008; 2008Do17108.

(2) Whether the Plaintiff’s trade name was widely known in the Republic of Korea at the time the Defendant started to use the trade name

(A) Of the Plaintiff’s trade name, the part of “nurine” is widely known, and thus, it cannot be an essential factor to distinguish the source of goods or the business entity, and the part of “durine rice farm” is merely an ordinary name or a tolerance phrase that is the place where the rice farm is manufactured and sold, and thus, it cannot be recognized as distinguishing between the source of goods or the business entity. Moreover, “nurine rice farm” includes the meaning of referring to the place of goods delivery or the business entity. As such, the trade name of “nurine rice farm” itself cannot be recognized as distinguishing the source of goods or the business entity.

(B) Such circumstances and as seen earlier, the Plaintiff used the Plaintiff’s trade name “Fido TV pole” from around 2002 to around 2002, and the Defendant began to use his trade name from around April 10, 2003, and there is no big difference when the Defendant started to use his trade name and the Plaintiff started to use his trade name “Fido TV pole” as the Plaintiff’s trade name. In other words, the Plaintiff’s start to advertise its business from around August 2002 to around 200, the Plaintiff’s trade name was widely known to the Plaintiff’s Plaintiff’s 4th business site from around August 200 to around 200, and the Plaintiff’s commercial name was widely known to the Plaintiff’s 20th TV business site from around 204 to around 300, 200, 300, 40, 20, 30, 20, 30, 30, 20, 4, respectively.

(3) Whether the Defendant used the same or similar business mark as the Plaintiff’s service mark

Although the plaintiff's assertion on this is unclear, there is no evidence to acknowledge that the defendant used the same or similar business mark as the service mark listed in the attached Table 1, and rather, according to the purport of the whole entries and arguments in the evidence No. 4-1 through No. 6, the defendant is recognized as not using a separate business mark in addition to his trade name.

(4) Sub-determination

Therefore, the plaintiff's claim is without merit under the premise that the defendant committed an unfair competition act under the Unfair Competition Prevention Act by using business marks similar to the plaintiff's trade name or service mark.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed. Since the judgment of the first instance that different conclusions are unfair, the defendant's appeal shall be accepted, and the judgment of the first instance shall be revoked and the plaintiff's claim shall be dismissed. It is so decided as

[Attachment 1, 2, and 3] Service Mark, Trademark: Omitted

Judges Lee Ki-taik (Presiding Judge)