[1] Requirements for the container or package of goods to constitute "a mark (mark) indicating the goods of another person" under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act

[2] The method of determining whether a product label is similar to a product label under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act where the product label consists of various elements, such as letters, diagrams, symbols, and colors

[3] Whether Article 15 of the former Unfair Competition Prevention and Trade Secret Protection Act applies to a case where the purpose of trademark registration is not to distinguish one's goods from another's goods, but to gain profits by causing confusion with another's goods by using a trademark identical or similar to another's trademark widely recognized in Korea (negative)

[1] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 20, 2004) / [2] Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 20, 2004) / [3] Article 15 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 204)

[1] [2] Supreme Court Decision 98Do2250 delivered on April 10, 2001 (Gong2001Sang, 1167) / [1] Supreme Court Decision 98Da63674 delivered on February 23, 2001 (Gong2001Sang, 723) Supreme Court Decision 99Do691 delivered on September 14, 2001 (Gong2001Ha, 2287), Supreme Court Decision 200Da67839 Delivered on February 8, 2002 (Gong202Sang, 657), Supreme Court Decision 2001Da5965 delivered on October 25, 202 (Gong2002Ha, 202Ha, 2828) / [3] Supreme Court Decision 201Da40810 delivered on April 28, 2010

Kascker Co., Ltd. (Law Firm Dakel, Attorneys Kim Jae-soo et al., Counsel for the plaintiff-appellant)

Geumho Co., Ltd. (Attorney Park Yong-ok, Counsel for the plaintiff-appellant-appellant)

Seoul High Court Decision 2000Na40317 delivered on January 8, 2002

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

The plaintiff's attorney's grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent it supplements the grounds of appeal) are also examined.

1. As to the grounds of appeal Nos. 1 and 2

A. According to the reasoning of the judgment below, the court below found facts as stated in its reasoning based on the evidence employed by the plaintiff (registration number No. 29749), and (registration number No. 346317) as to the similarity of the defendant's Caps, etc., two trademarks are not similar to each other because their appearance, name and concept are different, and as to whether the Kacos containers of this case are widely known domestically, according to the testimony of Kim Hong-chul, the court below held that the defendant's act of continuously selling the Kacos of this case's products such as photograph No. 1 (hereinafter "the Kacos containers of this case") in the form similar to the 200 Kacos containers of this case, on the basis that the 20 Kacos' mar's products are continuously recorded in the 30 mark mar or green mark's products, and that the 20 mar mar's products and mark's products are not recognized in the form of "Korea's products."

B. However, we cannot agree with the above determination by the court below for the following reasons.

Generally, the container or package of a product does not have the function of indicating the origin of the product. However, only if the shape, structure, pattern, color, etc. of a certain container or package is used as a means of giving a unique identity to the product for a long period of time, or if it has been used continuously, monopoly, or exclusively, or if it has continuously and continuously, or its characteristic, structure, or color is considerably individualized by continuous publicity advertisement, etc. to the extent that it is a product of a specific quality with a certain quality, it constitutes "mark (mark) indicating that it is another person's product" under Article 2 subparagraph 1 (a) of the former Unfair Competition Prevention Act (see, e.g., Supreme Court Decisions 98Da63674, Feb. 23, 201; 98Do2250, Apr. 10, 201).

In addition, when a mark indicating the product of a certain source consists of various elements, such as letters, diagrams, symbols, colors, etc., the determination of the similarity of the product mark as stipulated in the above provision shall be made by observing the appearance, name, and concept of the mark in the whole and separately from the perspective of the trader or ordinary consumers, taking into account all the elements that contribute to the display of the product (see Supreme Court Decision 98Do250 delivered on April 10, 2001).

According to the above legal principles and records, the issue of whether the car license of this case constitutes a product mark widely known to the public in the Republic of Korea shall be taken into consideration in the actual use of all the elements contributing to indicating the source of the goods. The front side of the car license container of this case "the name, figure, color, and pattern without the shape, etc. including the trademark," and the propaganda advertisement and award details as to the beer products sold using the car license of this case as shown in the facts duly admitted by the court below, etc., of this case, are considered as constituting a combination of the word, figure, color, and shape with the trademark of this case, which combines various elements such as "the whole appearance, including the trademark," which combines various elements such as the word, figure, color, etc. with the trademark of this case with the upper part of the car license container of this case, and thus, it is reasonable to see that the trademark of this case constitutes a combination of characters with the upper part of the car license container of this case and the trademark of this case as defined in Article 2 (1) of the Unfair Competition Prevention Act.

Nevertheless, the court below, however, arbitrarily separates the portion of the "Kasg Trademark" and the part of the "Kask Containers of this case" as stated in its holding, and on the other hand, judged whether the mark ", which is actually used in the Kask Containers of this case, is similar to the defendant's Kaap's trademark with the defendant's separate marks registered as such, and on the other hand, determined on the other hand, some of the elements that cannot be viewed as a differentiated feature that differs from other goods containers of this case from the same type as the Kask Containers of this case, which are specific in the form of the Kask Containers of this case in the form of the Kask Containers of this case, and judged whether they constitute the product mark. Therefore, the court below's above determination is erroneous in the misapprehension of legal principles as to the product mark or the similarity of goods marks under Article 2 subparagraph 1 (a) of

2. Regarding ground of appeal No. 3

According to the reasoning of the lower judgment, the lower court determined that the Defendant’s exclusive right to use the registered trademark on July 3, 1998 and obtained trademark registration on August 5, 200, barring any special circumstance, and thus, the use of the Cap's trademark in the closure container of this case can be deemed legitimate use based on the trademark right, barring any special circumstance.

Article 15 of the Unfair Competition Prevention Act provides that the provisions of other Acts shall not apply to cases where there are provisions different from the Unfair Competition Prevention Act, such as the Trademark Act. However, if a trademark is acquired in the form of trademark for the purpose of obtaining profits by using a trademark identical with or similar to another person's trademark widely recognized in Korea, not for the purpose of distinguishing one's own goods from those of another, the purpose of its application for trademark registration is the unfair competition act itself. Even if a trademark is recognized as an external form of exercise of right, it shall not be recognized as abuse or abuse of the trademark, and it shall not be recognized as legitimate exercise of right under the Trademark Act (see Supreme Court Decision 200Da487, Apr. 10, 200). Since the defendant's act of using the above trademark from the trademark to the trademark registration of this case constitutes an abuse of trademark right of this case, the defendant's trademark registration of this case constitutes "the trademark of this case's 900Da487, which is widely known to the defendant's trademark owner's use of the trademark of this case's trademark."

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)