Defendant

Kim Jong-Un (Public Trial) and Kim Jong-sung (Public Trial)

Attorney Han Han-ok

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The Defendant, as the actual representative of online sunset sales chain (trade name omitted) (English omitted), infringed the victim’s trademark right by receiving the visibility with Nonindicted Co. 1, a trademark right holder (trademark registration number omitted)’s ○○○○○○○○○○○○ brand of Nonindicted Co. 2, who granted a non-exclusive license to Nonindicted Co. 2, from September 2012 to April 8, 2016, at the (trade name omitted) office of △△ 405, Seoul (name omitted).

1. Part of the statement of each police interrogation protocol against the defendant (including Nonindicted 3's statement in the second protocol)

1. The police statement of Nonindicted 3

1. A complaint filed by Nonindicted Co. 1

1. The original trademark register;

1. (Trade Omitted) Advertisement output;

1. A trademark use contract (Nonindicted 2 stock companies) and a written agreement;

1. Content certification;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 93 of the former Trademark Act (wholly amended by Act No. 14033, Feb. 29, 2016; hereinafter “former Trademark Act”) Article 93 (Selection of Fines)

1. Invitation of a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The Defendant’s sale of visibility as indicated in the facts charged (hereinafter collectively referred to as “the visibility of this case”) constitutes an act of using a trademark identical to the injured party’s registered trademark on goods identical to the designated goods in principle pursuant to Article 66(1)2 of the former Trademark Act, and constitutes an act of infringement of the injured party’s trademark rights, as a matter of principle, pursuant to Article 66(1)2 of the former Trademark Act. Furthermore, considering that the Defendant had sufficient experience and knowledge as to the trademark rights even though he was engaged in visual sales from around 2007 and was supplied by Nonindicted Co. 2 without any proper measures to confirm the trademark rights of the injured party, the Defendant appears to have been at least a willful negligence in the above act of infringement. Meanwhile, the Defendant’s assertion of the Defendant and the defense counsel as to

1. The defendant asserts to the effect that "The non-indicted 2 corporation was a non-exclusive licensee of trademark right at the time of delivery of the instant visibility to the defendant, and so long as the defendant paid a reasonable price to the non-indicted 2 corporation and received the instant visibility, the victim's trademark right is achieved, and thus it shall not be infringed upon by the following acts, such as the sale of the defendant."

However, according to the above evidence, the victim established a non-exclusive license on the trademark right stated in the facts charged by the non-indicted 2 Co., Ltd. (hereinafter referred to as “instant sales place restriction agreement”) with regard to the trademark right stated in the facts charged on the condition that “only if the goods are sold at the store agreed upon with the victim.” Therefore, unless there is any evidence that the non-indicted 2 Co., Ltd. agreed with the victim on the route of delivering the visibility to the defendant, the above delivery goes beyond the non-exclusive license of the non-indicted 2 Co., Ltd., and is deemed to be an infringement of trademark rights (the theory of exhaustion of trademark rights is not applicable in that the injured party did not receive any reasonable compensation for the above delivery from the non-indicted 2 Co., Ltd.). Accordingly, the above assertion on the premise that the above delivery is lawful, not a violation of trademark rights, is without merit.

2. The Defendant asserted that “the restriction on a non-exclusive license cannot be set up against a third party unless registered pursuant to Article 58(1)1 of the former Trademark Act, and the victim cannot set up against the Defendant an agreement on the restriction on the place of sale of this case.” The decision under Article 58(1) is contrary to the judgment.

However, according to the above evidence, the non-exclusive license established by non-indicted 2 corporation is not registered. Thus, it is not possible to interpret Article 58 (1) 1 of the former Trademark Act that the defendant's side uses the validity of the non-exclusive license as the content of the non-exclusive license, which is the content of the non-exclusive license. Thus, it is not possible for the non-exclusive licensee to refuse the validity of the contract of this case, which is included in the contract, on the ground that the non-exclusive license is not registered.

3. The Defendant asserts to the effect that “The instant sales site restriction agreement constitutes an unfair trade practice prohibited by the Monopoly Regulation and Fair Trade Act (conditions of detention; Article 23(1)5).”

On the other hand, even if the instant sales place restriction agreement is likely to violate the Monopoly Regulation and Fair Trade Act, as argued by the Defendant, the issue of whether the said agreement is unlawful or invalid should be determined by comprehensively taking into account all the circumstances, such as the specific position of the parties to the transaction, transaction behavior, market situation, etc. Accordingly, even if examining all the records, it cannot be confirmed at all, and the above assertion is without merit.

Judges Jeong Jong-do