[1] Whether a competitor's act constitutes a tort under the Civil Act in cases where the competitor's act of using the outcome of considerable effort and investment without permission for his/her own business, thereby obtaining unjust profits and infringing on competitor's legal interests worth protecting (affirmative)

[2] In a case where Company A, while operating an Internet shopping mall in which products were sold, searched and selected an overseas famous person’s photo, affixed a model with a similar physical feature, affixed his/her photo and affixed it again, and posted it on the Internet shopping mall by means of combining it with an overseas famous person’s photo, and where Company B, which sells the same or similar clothes products at the Internet shopping mall, copied or copied the image produced by Company A, posted it on the Internet shopping mall of Company B, and sought damages against Company B, the case holding that the lower court recognized Company B’s liability for damages on the ground that Company B infringed upon Company B’s business interests with the protected value by reproduction, etc. of image, etc., on the ground that the part infringing upon Party A’s rights does not constitute a legally protected interest.

[1] An act of using the outcomes of considerable effort and investment by a competitor without permission for one's own business in violation of business ethics or the order of fair competition, thereby obtaining unjust profits by taking advantage of the competitor's efforts and investment and infringing on competitor's interests worth legal protection, is an act of unfair competition, and constitutes a tort under the Civil Act.

[2] In a case where Company A, while operating an Internet shopping mall where it sells clothing products, searched and selected overseas famous persons’ pictures, affixed a model with similar physical characteristics, affixed them with their pictures affixed, affixed them, and posted them on the Internet shopping mall by combining them with overseas famous persons’ pictures, and where Company B, which sells identical or similar clothing products at the Internet shopping mall, copied or copied the images produced by Company A, posted them on the Internet shopping mall of Company B, and sought compensation for damages against Company B, the case holding that Company A and Company B conspired with each other, emphasizing that the same sales strategy emphasizing that the products are suitable for the reputation of the overseas famous persons, and that Company B’s reproduction or imitate of the images produced by Company A for more than one year, and even during litigation, such acts do not constitute infringement upon Company A’s business interests by deeming that the aforementioned acts do not constitute infringement upon Company A’s business interests, thereby infringing upon Company A’s rights, and thus, the lower court’s judgment was justifiable.

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act

[1] Supreme Court Decision 2008Ma1541 Decided August 25, 2010 (Gong2010Ha, 1855), Supreme Court Decision 2014Da49180 Decided November 9, 2017 (Gong2017Ha, 2296)

PapPP Co., Ltd. (Law Firm Beneficiary, Attorneys Lee Jae-min et al., Counsel for the plaintiff-appellant)

Ro System Co., Ltd. (Law Firm LLC, Attorneys Lee Lee-woo et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2014Na50219 Decided June 11, 2015

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. An act of using the outcomes of considerable effort and investment made by a competitor without permission for one’s own business in contravention of business ethics or the order of fair competition, thereby obtaining unjust profits by taking advantage of the competitor’s efforts and investment and infringing on competitor’s legal interests worth protecting (see, e.g., Supreme Court Order 2008Ma1541, Aug. 25, 2010).

2. Based on the following circumstances, the lower court partially accepted the Plaintiff’s claim for damages, recognizing that the Plaintiff infringed on the Plaintiff’s business interests worth protecting the Plaintiff’s image reproduction, etc.

A. The Plaintiff and the Defendant are competing with each other by seeking the same sales strategies emphasizing that the products are suitable for the image of a foreign famous person while selling the same or similar clothing products using the Internet site.

B. In order to produce the image to be used at one’s own website, the Plaintiff searched and selected a foreign master’s photograph, employed a model with similar physical characteristics, affixed his/her photograph, affixed the photograph, and combine it into a foreign master’s photograph. At least one year, the Defendant reproduced or copied the image produced by the Plaintiff, and repeated this act while continuing the instant case.

C. It is a separate issue for the Plaintiff to claim damages on the ground that the Plaintiff’s business interest was infringed in relation to the Defendant’s relationship with an overseas well-known person by using the face pictures without permission of an overseas well-known person, and thus, the Plaintiff’s claim for damages is a separate issue.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence without exhaust all necessary deliberations, or by misapprehending the legal doctrine on the establishment of tort, such as interests with legally protected value, contrary to what is alleged in the grounds of appeal. In so doing, the Defendant asserted that the part of the Plaintiff’s infringement on a third party’s rights did not constitute an interest with legally protected value

4. The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)