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(영문) 서울중앙지방법원 2020.1.17.선고 2019가합518068 판결
상표권침해금지등의소
Cases

2019Gahap518068 Action for the prohibition of infringement of trademark rights

Plaintiff

Agsian

Defendant

1. B:

2. C company:

Conclusion of Pleadings

December 20, 2019

Imposition of Judgment

January 17, 2020

Text

1. Until December 31, 2020, Defendant B shall not use the Doz and its Doz and its Doz and its Doz until December 31, 2020 as the materials, Internet posts, or goods of Defendant B.

2. The Plaintiff’s remaining claims against Defendant B and the claim against Defendant C against Defendant C are dismissed, respectively.

3. Of the costs of lawsuit, 80% of the portion arising between the Plaintiff and Defendant B shall be borne by the Plaintiff, the remainder by Defendant B, and the portion arising between the Plaintiff and Defendant C shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

Purport of claim

1. The Defendants shall display the marks listed in the attached Form 1 as indicated in the attached Form 2 or advertising advertisements on the above goods;

It is displayed on, or indicated in, printed materials, packaging, containers, or accessories sold together with the above goods, or

Advertisements, printed materials, packaging, containers, and accessories sold together with the above goods;

sale, transfer, display, export, or import of any product bearing the above mark for that purpose;

shall not be eligible for any proceeding.

2. The Defendants shall produce, use, sell, transfer, lend, import, or import the goods listed in the Attachment No. 2.

shall not make an offer.

3. The Defendants keep or display their main office, factories, branches, business offices, offices, and warehouses.

finished goods and semi-finished goods listed in the attached Form 2 using the mark described in the attached Form 1.

The intermediate products entered in the manufacturing process for such purposes, which have not yet reached the stage of finished products;

(A) substitutes for any material sold together with the material, publicity advertisements, printed materials, packaging, containers, and any accessories sold together with the material.

such mark shall be removed, and if it is not possible to remove only the mark, the finished product and the finished product bearing the mark; and

Half-finished goods, propaganda advertisements, printed materials, packaging, containers, and accessories sold together with the above goods shall be discarded.

4. The Defendants keep or display their main office, factories, branches, business offices, offices, and warehouses.

finished goods and semi-finished goods listed in the annexed Form 2 (in manufacturing process to be made as finished goods)

The intermediate products are: (a) disposal of the finished products which have not yet reached the stage of finished products.

5. The Defendants shall provide the slips listed in the [Attachment 3] and any data containing the Defendants’ business data;

No Internet bulletin or goods shall also be used.

6. The defendant Cr. The defendant Cr. all of the materials, including the seals listed in the annex 3 and the knife's business materials of the above defendant.

The net bulletin board or articles shall be deleted.

7. The Defendants each serve KRW 50,000,000 on the Plaintiff, and the service date of the copy of the instant complaint:

15% per annum from the date of May 31, 2019 to the date of full payment, and 12% per annum from the following day to the date of full payment.

payment of the money (each explicit claim) shall be made by the Corporation.

Reasons

Reasons

1. Basic facts

A. The Plaintiff’s registered trademark 1) filing date (date of priority claim)/registration date//registration number on October 15, 2007 (*. *. *. *. *. *. *. *. *********) : For the semiconductor manufacturing of Chapter 9, classification of goods: License for the semiconductor manufacturing (for S wheeling in use), software for the semiconductor manufacturing (for softing in inuse and in fact-finding for personnel management), software for the semiconductor manufacturing (softing in fact-finding for personnel management).

나. 당사자들의 지위1 ) 원고는 1984. 경 미국 ◈◇◈◇주에서 설립되어 2004. 경부터 ' WAOOOOENSE ' 라는 표장을 사용하여 ' 반도체 웨이퍼 대신 반도체 공정설비에 삽입되어 반도체 제조공정의 환경 변수들을 자동으로 측정하고 측정결과를 무선으로 전송하는 방식의 웨이퍼 형상의 무선 반도체 공정용 측정장치 ' ( 이하, 위와 같은 원고의 측정장치를 ' 원고 제품 ' 이라고 한다 ) 의 생산, 판매 등을 영업으로 하고 있는 회사이다 . 2 ) 피고 B사 ( 이하 ' 피고 B사 ' 라고 한다 ) 는 2004. 3. 24. 설립되어 반도체 장비의 제조 및 판매업 등을 영업으로 하고 있는 회사이고, 피고 C사 ( 이하 ' 피고 C사 ' 라고 한다 )

In April 28, 2015, it is a company that is established on April 28, 2015 and engages in the business of manufacturing, selling, etc. semiconductor equipment.

C. On January 10, 206, the Plaintiff entered into an agency contract for domestic sales of the Plaintiff’s products (hereinafter referred to as “the first agency contract”) with the Defendant B, including but not limited to the Plaintiff’s personal information, and then sold the Plaintiff’s products through the Defendant B’s first agency contract through the Defendant B. The Plaintiff’s non-confidential or non-confidential information on all confidential information for domestic sales of the Plaintiff’s products (hereinafter referred to as “the second agency contract”). The Plaintiff’s non-confidential or non-confidential information on the Plaintiff’s product’s product’s non-confidential or non-distincing method or non-distincing information on the Plaintiff’s product’s product’s non-confidential or non-distincing method or non-distincing information on the Plaintiff’s product’s product’s non-confidential or non-distincing method, non-confidential or non-distincing information on the Plaintiff’s product’s product’s product’s product’s non-confidential or non-distincing method.

D. The Plaintiff’s votes and Map, etc. 1) written the Plaintiff’s AOS (Gaborne***** Sensor) and AOS (Astro********* Systm)’s marks and Map (hereinafter “the instant chart and Map”) in attached Form 3 to introduce the characteristics and advantages of the Plaintiff’s products, and used them as the Plaintiff’s business data, and offered them to Defendant B.

2) The business data of Defendant C Co., Ltd., the customer of Defendant C Co., Ltd, include the instant chart and the content of the instant chart, as shown in attached Table 4, which only differs from some colors and fonts, and the chart and its ex-postpon (hereinafter “Defendant C Co.’s chart and its ex-postpon”). In addition, Defendant C Co.’s chart and its ex-postpon were published on the Defendant C Co.’s website around early 2018, and were deleted from the dateless.

2. A request made due to infringement of trademark rights;

A. The plaintiff's assertion 1)

Defendant C produced marks listed in attached Table 1, which are similar to the Plaintiff’s registered trademark (hereinafter “the Defendants’ marks”) on goods listed in attached Table 2, which are identical to or similar to the Plaintiff’s designated goods of the Plaintiff’s registered trademark (hereinafter “goods of the Defendants”). Defendant B sold them and thereby infringed the Plaintiff’s trademark right on each Plaintiff’s registered trademark (hereinafter “the Plaintiff’s registered trademark and the trademark right of this case,” respectively).

Therefore, the Plaintiff filed a claim against the Defendants for prohibition and destruction as stated in paragraphs (1) and (3) of the claim. In addition, the Plaintiff suffered from infringement of business interests by the Defendants’ infringement of trademark rights of this case, and thus, sought payment of KRW 50,00,000, which is a part of each amount of damages.

2) The Defendants’ assertion is not similar inasmuch as the registered trademark of this case and its external appearance, name, and concept are different.

B) The defendants' mark constitutes "a trademark indicating, in a common way, the ordinary name, quality, efficacy, and shape of the defendants' goods identical with or similar to the designated goods of the registered trademark" under Article 90 (1) 2 of the Trademark Act, and thus the trademark of this case is not effective.

C) In addition, the instant registered trademark constitutes “a trademark consisting solely of a mark indicating the efficacy, use, and shape of the goods in a common way” under Article 6(1)3 of the former Trademark Act (amended by Act No. 14033, Feb. 29, 2016; hereinafter “former Trademark Act”), and it is apparent that the registration thereof would be invalidated by an invalidation trial. Thus, the Plaintiff’s assertion that the instant registered trademark constitutes an abuse of rights is impermissible.

B. Determination

First of all, we examine the defendants' arguments in the above 2) B.

1) Relevant legal principles

Article 90(1)2 of the Trademark Act provides that trademark rights do not have effect on a trademark indicating the ordinary name, origin, quality, raw material, efficacy, use, quantity, shape, method of production, processing, method of use, and time of goods identical or similar to the designated goods of the registered trademark in a common way. Whether a trademark falls under such trademark shall be objectively determined in light of the concept of the trademark, relationship with the goods using the trademark, the circumstances of the transaction society, etc. The trademark should be objectively determined in light of the concept of the trademark, the relationship with the goods using the trademark, and the circumstances of the transaction society, etc. If a consumer can directly recognize the character of the goods used as indicating their quality, efficacy, shape, etc. (see Supreme Court Decision 2008Hu4585, May 13, 2010).

2) Determination

The Defendants’ goods are, as a license for the manufacture of semiconductors in the form of wafers used to measure environmental variables, such as vibration, fluor and imbalances, installed in lieu of wafers in places where semiconductors are installed among semiconductor manufacturing facilities, and used to measure such environmental variables as wafers in the semiconductor manufacturing process, among semiconductor manufacturing process, are the same as a license for the manufacture of semiconductors, which is the designated goods of the instant registered trademark, (for example, for scars).

피고들 사용표장은 각 반도체 제조를 위한 실리콘 기판 등을 의미하는 영어단어인 " ◎◎◎◎◎ " 와 감지기를 의미하는 영어단어인 " sensor " 및 기술이 뛰어남을 의미하는 영어단어인 " △△△△△△ " 를 문자의 변형이나 도안화 없이 가로방향으로 띄어 쓰기를 하여 결합한 문자상표이다. 또한 우리나라 반도체 제조업 분야 종사자의 일반적 영어 수준에 비추어 보면, 피고들 사용표장을 구성하는 " ◎◎◎◎◎ ", " sensor " 및 " △△△△△△ " 는 비교적 쉬운 영어단어에 속한다 .

Therefore, consumers in the license for the manufacture of semiconductors may, in accordance with the meaning of the English short language above, express the Defendants’ marks in relation to the goods of the Defendants that they are “bandted in the form of a waferer in connection with the goods of the Defendants,” or that they are “bandted in use related to the waferer in the manufacture of semiconductors.”

Therefore, the defendants' mark constitutes a trademark indicating the shape or use of the defendants' goods identical to the designated goods of the trademark of this case in a common way, and the effect of the trademark of this case does not extend to this. Thus, the defendant's above assertion is justified

C. Sub-committee

Ultimately, the plaintiff's claim on the ground of trademark infringement is without merit, without further examination.

3. Claim based on an unfair competition act under subparagraph 1 (a) of Article 2 of the Unfair Competition Prevention Act;

A. The plaintiff's assertion

Although the registered trademark of this case is widely known domestically as a mark on the plaintiff's product, from early 2018 to the date, the defendants used the mark similar to the registered trademark of this case on the defendants similar to the plaintiff's product and caused consumers to confuse the plaintiff's product and the defendants' product. Such defendants' act constitutes an unfair competition act under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act").

Therefore, the Plaintiff filed a claim against the Defendants for prohibition and destruction as stated in paragraphs (1) and (3) of the claim. In addition, the Plaintiff suffered from infringement of business interests due to the said unfair competitive act committed by the Defendants, and thus, sought payment of KRW 50,00,000, which is a part of each damages amount.

B. Determination

1) In determining whether a mark indicating another person's goods has been widely known in Korea, the standard for determining whether the use period, method, pattern, quantity of use, scope of business, etc. is objectively widely known under the general social norms, etc. (see, e.g., Supreme Court Decisions 9Do691, Sept. 14, 2001; 2010Da53440, Oct. 14, 201).

2) Recognized facts

① The Plaintiff’s product was sold for about 14 years from around 2006 to around 14 years, and the domestic gross sales from around 2006 to February 2019 constituted USD 9,751,929.

② The Plaintiff spent USD 11,39,611 in total from around 2007 to April 2019 at the marketing cost of the Plaintiff’s product.

③ In Korea, the Plaintiff sells the Plaintiff’s product to semiconductor manufacturers, such as third-party electronic and ○○○○○○○○, etc., via an agency. In addition, the Plaintiff, other than Korea, entered into an agency supply contract with the United States, China, Japan and Europe, and sells the Plaintiff’s product.

④ In order to publicize the Plaintiff’s products, etc., the Plaintiff participated in “Semicon Korea (Semicon Korea)”, which is a semiconductor technology exhibition held in the Republic of Korea from around 2011 to around 2019. January 2019.

23. From the 25th of the same month to the 25th of the same month, 469 companies participated in the exhibition and 40,000 visitors or more.

⑤ In 2007 and 2008, the Plaintiff’s products won Semicon International Eitor “shocor”, and won several awards in the field of semiconductor industry, such as “Semicon A” in 201 and 2016.

④ The Plaintiff distributed news report data on the Plaintiff’s product eight times in total from February 20, 2014 to June 11, 2019 via Nws Wre.

⑤ On January 31, 2015 and January 21, 2016, the Plaintiff’s products were published on the “ CCTV news,” which is a medium specializing in information and communications. On January 30, 2018 and June 1, 2019, the Plaintiff’s products were published on “the monthly electronic science,” which is a medium specializing in the electronic industry, published on the “the mechanical newspaper,” which is a medium specializing in the mechanical industry on January 30, 2018. On June 11, 2019, the Plaintiff’s products were published on the “the monthly container,” which is a medium specializing in the semiconductor industry. Moreover, the Plaintiff’s products were published on several occasions from around January 304 to around September 201.

8. The plaintiff is promoting the plaintiff's product through 'IOOENE' in the search engine, such as Google, and search by searching 'WOOOE' as the registered trademark of this case is being searched, many images and other materials of the plaintiff's product are searched.

3) However, in light of the following circumstances, it is difficult to view that the registered trademark of this case was widely known in the Republic of Korea as a mark on the Plaintiff’s product on the beginning of early 2018, and there is no other evidence to acknowledge otherwise.

① The annual average sales amount after the Plaintiff’s product was sold in Korea is below KRW 70 million, and USD 3,716,061 of USD 9,751,929, which is the domestic total sales amount from around February 2006 to February 1, 2019, is the sales amount generated after January 1, 2017.

(2) For the plaintiff's products, various kinds of products traded in the market for measuring instruments for the manufacture of semiconductors.

One kind of product is only one, and there is no material to confirm the ratio of the trading volume of the Plaintiff’s product to the trading volume of the entire product traded in the market for measuring instruments for semiconductor manufacturing.

③ The Plaintiff spent USD 11, 399, and 611 at the marketing cost of the Plaintiff’s product from around April 2007 to April 2019. However, the said marketing cost is not the Republic of Korea, but the United States, China, and China.

It appears that it was paid to all trading countries in the country, Japan, and Europe, and there is no evidence to confirm the costs that the plaintiff spent for marketing of the plaintiff's products in Korea.

④ Although the Plaintiff sells the Plaintiff’s product to major semiconductor manufacturers, such as ○○ Electronic and OOOO clinicss, there is no evidence to confirm the transaction period and transaction volume between the Plaintiff and the said manufacturers. In light of the fact that the domestic sales of the Plaintiff’s product sharply increased after around 2017, it is relatively likely that the domestic semiconductor manufacturers began to use the Plaintiff’s product in good faith after around 2017.

⑤ Although the Plaintiff participated in the “Smicom Korea,” which was held in Korea since 2011 in order to publicize the Plaintiff’s products, the Plaintiff is only one of the white companies participating in the “Smicom Korea.” Moreover, there is no evidence to confirm that the Plaintiff’s award of the prize in the semiconductor industry as the Plaintiff’s products has the effect of publicity.

6) As seen earlier, Nws Wire’ appears to have distributed the news materials received from the Plaintiff as a service company that distributes news materials published by the company to reporters. The number of times the Plaintiff’s products reported through the media in Korea or reported through a specialized monthly newspaper is only six times in total.

7) The frequency of the tubes videos posted to publicize the Plaintiff’s product is only twice or more times by video. In addition, in cases where the search engine such as Gagle searches “WAOENE” as the instant registered trademark in the search language, the main reason why the image of the Plaintiff’s product and other data are searched is that the part of the instant registered trademark is consistent with the search language.

C. Sub-committee

Ultimately, since the registered trademark of this case cannot be deemed to have been widely known to the Republic of Korea as a mark on the Plaintiff’s product around early 2018, the Plaintiff’s claim on the premise of the registered trademark is without merit.

4. Request for infringement of trade secrets under the Unfair Competition Prevention Act;

A. The plaintiff's assertion

The Plaintiff’s technical data or business concern, which was kept confidential by reasonable efforts, is a trade secret under Article 2 subparag. 2 of the Unfair Competition Prevention Act, and is not known to the public and has independent economic value.

Although Defendant B had a duty to maintain the instant chart and its line as a trade secret pursuant to Article 1.1 and 9.1 of the Second Agency Agreement, Defendant B offered the instant chart and its line to Defendant C without the Plaintiff’s permission. Such act constitutes a trade secret infringement under Article 2 subparag. 3(d) of the Unfair Competition Prevention Act.

In addition, even with the knowledge of the infringement of Defendant B’s trade secrets, Defendant C had been provided with the instant chart and its explosion from Defendant B and used it for its own business. Such act of Defendant C constitutes a trade secret infringement under Article 2 subparag. 3(e) of the Unfair Competition Prevention Act.

Therefore, the Plaintiff filed a claim against the Defendants for the same prohibition as stated in the claim(5), and as stated in the claim(6) against Defendant C, as to Defendant C’s claim. In addition, the Plaintiff suffered from infringement of business interests due to the Defendants’ infringement of trade secrets, and thus, sought payment of KRW 50,00,000, which is a part of each damages amount.

B. Whether the instant paint and its lap constitute a trade secret under the Unfair Competition Prevention Act

1) Relevant legal principles

The term "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 16204, Jan. 8, 2019; hereinafter referred to as the "former Unfair Competition Prevention Act") means any production method, sale method, and other technical or managerial information useful for business activities, which are kept confidential by reasonable efforts, of which the holder of information has independent economic value, means that the holder of information can benefit from competition, or requires considerable expenses or efforts for the acquisition or development of information (Supreme Court Decision 201Da754, Jul. 7, 2011).

14. See, e.g., Supreme Court Decision 2009Da12528, supra)

2) Facts of recognition

① The instant chart and its AOS (Gaborne****** Sensor) and AOS (Auto****** System) from among the Plaintiff’s products are prepared to introduce the characteristics and advantages of the Plaintiff’s products.

② The Nos. 1 through 7 of the instant chart and its AOS among the Plaintiff’s products. Of them, the number Nos. 1 and 2 of them recorded the result of measuring the change in dust amount in the process of semiconductor wafer in the process of semiconductor wafer in a certain customer’s process environment using AOS. The Nos. 3 records the result of measuring in the same environment as Nos. 1 and 2 using equipment of the name “OOO Phssssics, Inc. - Tenor” in the name “KLA-Tenor,” and the Nos. 4 through 6 records the same results as that of the process of semiconductor wafer in the process of the semiconductor wafer in an environment different from Nos. 1 through 3. The Nos. 7 records the results of these measurements by gathering them and compiling the changes in the amount of dust in each stage of the process of semiconductor wafer.

③ Also, the Nos. 8 through 10 of the instant chart and its AOS among the Plaintiff’s products. Of them, the Nos. 8 and 10 recorded the result of the vibration measurement in the course of the process of semiconductor wafers by using AOS. The No. 9 indicated that using the program “Vibe Review” is to confirm the distribution of frequencies of vibrations measured AOS and to compare the results among different measurements. The No. 10 indicated the Nos. 10 after measuring the vibration for any equipment, luxing the surface of the equipment, luxing the surface of the equipment, luxing it, and measuring it again so that the vibration before and after the surface treatment can be compared.

④ The Nos. 1 through 10 of the instant chart and its e.g., both the instant chart and its e.s. 1 through 10 shall consist of both the numerical value (hereinafter referred to as “d.e., the numerical value”) on which the change in the amount of dust emissions and vibration are measured in a semiconductor process environment and the numerical value thereof are easily understood or easily expressed by using the chart or its e.g. (hereinafter referred to as “d., the indication part”).

3) Determination

First of all, we examine whether the instant Domark and its Domark constitute information having independent economic value as a requirement for trade secrets under Article 2 subparagraph 2 of the former Unfair Competition Prevention Act.

It is insufficient to recognize that the holder of the instant Do chart and its affiliated officers can gain competitive benefits through their use, or need considerable expenses or efforts to acquire or develop the instant Do chart and its affiliated officers, and there is no other evidence to acknowledge otherwise.

Rather, in light of the following circumstances, it is difficult to view that the holder of the instant chart and its ex antee may benefit from competition to use it, or that considerable expenses or effort is necessary to acquire or develop the instant chart and its ex antee.

① The numerical value of the instant chart and its AOS in any process itself is merely an example of the values measured by the amount of dust emitting and vibration using AOS and AOS among the Plaintiff’s products in any process environment. This may vary depending on the fair environment, and it is merely an example of obtaining measurements using other companies’ measuring instruments under the same conditions.

② There is no material suggesting that the process environment, which is the subject of the above measurement, has special economic value. Rather, in adopting each other for the manufacture of semiconductors, a semiconductor manufacturer, which is the consumer of the Plaintiff’s products, rather than reliance on the instant chart and its ex antes, written based on the numerical value measured in the voluntary process environment, rather than reliance on the instant chart and its ex antes.

On the basis of the determination on the adoption of the Plaintiff’s product, it is difficult to see that the instant chart and its fair environment have special economic value.

③ Of the instant chart and its ex antepysics, the number 3 and 6 parts of the instant chart are indicated by Nonparty ○○○○○○○, Inc.’s “KLA” - Tencor” rather than the Plaintiff’s product. The number 7 parts were arranged by phase of the process using the document preparation program publicly notified as not the Plaintiff’s program, with the measurement value Nos. 1, 2, 4, and 5 in turn.

④ The same as or similar to the Plaintiff’s 1, 2, 4, 5, 8, 9, and 10 of the Plaintiff’s product’s Japanese clocks and the Plaintiff’s clocks image among the display parts of the instant chart and its clocks are publicly announced by the Japanese clocks and the Plaintiff’s clocks. Moreover, such display parts may be easily prepared by using the Plaintiff’s AOS product sold among the time.

Therefore, it cannot be deemed that the instant Domark and its Domark cannot be seen as having independent economic value, and they do not constitute trade secrets under Article 2 subparagraph 2 of the Unfair Competition Prevention Act.

C. Sub-committee

If so, the plaintiff's claim on the premise that the instant Domark and its Domark constitute trade secrets under Article 2 subparagraph 2 of the Unfair Competition Prevention Act is without merit.

5. Claims arising from unfair competitive acts under subparagraph 1 (k) of Article 2 of the Unfair Competition Prevention Act;

A. The plaintiff's assertion

The Plaintiff’s trademark as to the Plaintiff’s product is the Plaintiff’s outcome made of considerable investment or effort. However, the Defendants produced the Defendants’ product that imitated the concept, shape, and use method of the Plaintiff’s product using technical data and business data acquired through the first and second agency contract without permission, and infringed the Plaintiff’s economic interest by attaching and selling the Defendants’ mark similar to the instant registered trademark widely known to consumers. The Defendants’ act constitutes an unfair competition act under Article 2 subparag. 1(k) of the Unfair Competition Prevention Act.

Therefore, the Plaintiff filed a claim against the Defendants for prohibition and destruction as stated in paragraphs (2) and (4) of the claim. In addition, the Plaintiff suffered from infringement of business interests due to the said unfair competition act by the Defendants, and thus, sought payment of KRW 50,00,000, which is a part of each amount of damages.

B. Determination

1) Relevant legal principles

Article 2 subparagraph 1 (k) of the Unfair Competition Prevention Act provides that "any other act infringing on other's economic interests by using the results, etc. made by considerable investment or effort for one's own business without permission in a manner contrary to fair commercial practices or competition order" as an unfair competition act.

Article 2 subparagraph 1 (k) through (j) of the Unfair Competition Prevention Act has the character of a supplementary general provision to properly cope with new and diverse types of unfair competition that could not be included in the type of act under Article 2 subparagraph 1 (a) through (j) of the same subparagraph. Since such supplementary general provision might excessively restrict the freedom of competition which is the basis of the market economy, it is reasonable to view that the investment or efforts should be made to the extent corresponding to the investment or effort in relation to the legal interests that are worthy of protection under Article 2 subparagraph 1 (k) through (k) of the Unfair Competition Prevention Act in order to fall under "the outcome, etc. made by considerable investment or effort".

In addition, even though it is another person's performance made by considerable investment or effort, the use of intellectual property rights is permitted free use. Thus, the use without permission of another person who is the subject of performance can not be seen as an unfair competition act under Article 2 subparagraph 1 (k) of the Unfair Competition Prevention Act. Only the use without permission by a method which is not justified in light of fair commercial practices or free competition order can be seen as such unfair competition act.

2) The concept, form, and method of use of the Plaintiff’s product

The measure apparatus for the use of a radio semiconductor process in the form of a wafer, which is the method of automatically measuring and radio transmitting measurement results, by inserting the environmental variables in the process of semiconductor process into semiconductor process instead of semiconductor wafers, is as seen earlier.

However, the concept, form, and method of use of the Plaintiff’s product can be recognized as having been announced by the Plaintiff from around 2007 to its customers in Korea. Therefore, even if the Plaintiff’s product’s concept, form, and method of use are the Plaintiff’s performance made with considerable investment or effort, if the intellectual property right is not recognized, the Defendants may freely use the Plaintiff’s product, unless there are special circumstances, such as that the Defendants used the Plaintiff’s product without permission in a way that would not be justified in light of fair commercial practices or free competition order. Thus, there is no assertion or proof as to the establishment of intellectual property right regarding the concept, form, and method of use of the Plaintiff’s product, and there is no other evidence to acknowledge it.

Therefore, even if the Defendants used the concept, form, and method of use of the Plaintiff’s product, such act cannot be deemed to constitute an unfair competition act under Article 2 subparag. 1 (k) of the Unfair Competition Prevention Act. 3) The Plaintiff’s technical data and business data, which is its outcome, asserted that the Plaintiff’s technical data and business data, are all technical and business information on the Plaintiff’s product provided to Defendant B pursuant to the first and second agency contract, and are not limited to this case’s chart and its contents. However, the submitted evidence alone is insufficient to acknowledge the contents of the technical data and business data other than the instant chart and its future chart, and there is no other evidence to acknowledge them.

Therefore, among the technical materials and business materials asserted by the Plaintiff, their contents are only the instant chart and its future chart. Since it is difficult to see that considerable expenses or efforts are necessary for the acquisition or development of the instant chart and its future chart, it cannot be deemed that the instant chart and its future chart constitute the outcome, etc. made by considerable investment or effort subject to protection under Article 2 subparag. 1 (k) of the Unfair Competition Prevention Act.

4) As seen earlier, it cannot be deemed that the registered trademark of the Plaintiff’s trademark was widely known to the Republic of Korea as a mark on the Plaintiff’s product around early 2018.

In addition, the defendants' mark constitutes a trademark indicating the shape or use of the defendants' goods in a common way. Thus, the defendants can use the defendants' mark on the defendants' goods regardless of whether the defendants mark is similar to the plaintiff's trademark.

Therefore, the Defendants’ use of the Defendants’ mark on the Defendants’ goods constitutes an unfair competition act under Article 2 subparag. 1 (k) of the Unfair Competition Prevention Act.

C. Sub-committee

Ultimately, since the Defendants cannot be deemed to have committed an unfair competition act under Article 2 subparag. 1 (k) of the Unfair Competition Prevention Act, the Plaintiff’s claim premised on this cannot be seen as having been more and more reasonable.

6. Claim against the defendant B on the ground of the violation of the second agency contract

A. The plaintiff's assertion

The instant table and its Doz. fall under the confidential information of Section 1.1 of the Agreement concluded at the time of the second agency contract, and Defendant B bears the obligation to keep it confidential in accordance with the provisions of Section 9.1 of the Agreement. Defendant B breached the above obligation and used the instant chart and its Doz., and provided it to Defendant C.

Therefore, the Plaintiff, as described in paragraph (5) of the claim, claims against Defendant B for the prohibition of use of the instant chart and its explosion. In addition, the Plaintiff suffered from infringement of business interests due to Defendant B’s breach of duty, and thus, the Plaintiff sought payment of KRW 50,00,000, which is a part of the amount of damages.

(b) judgment;

1) Determination on the claim for prohibition

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document unless there is any clear and acceptable counter-proof that denies the contents of the statement (see Supreme Court Decision 2017Da235647, Jul. 12, 2018).

The fact that paragraph 1.1 of the contract prepared by the Plaintiff and Defendant B at the time of the second agency contract, regardless of copyright or patent registration, stipulates the technical data, etc. related to all aspects of the Plaintiff’s business that the Plaintiff disclosed directly or indirectly to Defendant B, as seen earlier, as well, should be interpreted only as meaning only a trade secret under the Unfair Competition Prevention Act. There is no clear and acceptable counter-proof.

In addition, the instant chart and its AOS were prepared to introduce the characteristics and advantages of the Plaintiff’s products, which are included in the Plaintiff’s business data, and the fact that the Plaintiff offered them to Defendant B is as seen earlier. According to such recognition, the instant chart and its AOS are technical data related to the Plaintiff’s business disclosed to Defendant B, and they constitute “confidential information” under Article 1.1 of the said Agreement.

Furthermore, the above contract 9.1. Paragraph 1 provides that Defendant B agrees to treat and not use confidential information under the above contract as confidential for five years from the termination date of the second agency contract, and the second agency contract terminated on December 31, 2015 is as seen earlier. As such, Defendant B bears the duty not to use the instant map and its list until December 31, 2020, which was five years from December 31, 2015.

In addition, it is apparent in itself that Defendant B is dissatisfied with the existence of the above prohibition obligation. As such, the necessity of the Plaintiff to seek the performance of the above prohibition obligation against Defendant B is recognized.

Therefore, Defendant B shall not use the instant chart and its Dozp on December 31, 2020 as the data, Internet bulletin, or goods upon the Plaintiff’s request. Thus, the Plaintiff’s claim for prohibition is justified within the scope of the above recognition, and the remainder of the claim is groundless. 2) The judgment on the claim for damages is without merit.

As seen earlier, the instant chart and its Domark constitute confidential information under the second agency contract, and the Defendant Company’s obligation to keep it confidential pursuant to the second agency contract is as seen earlier. Moreover, the instant chart and its Domark are included in the Defendant Company’s business data, the customer of the Defendant Company, which are identical with the content of the instant chart and its Domark, and only a part of the colors and letters, and the fact that the Defendant Company’s chart and its Domark were published on the Defendant Company’s website around early 2018 is identical. As such, the possibility that Defendant Company violated the duty of confidentiality and prohibition under the second agency contract cannot be ruled out.

However, even if Defendant B is found to have intentionally or negligently breached the duty of confidentiality and prohibition under the second agency contract, there is no evidence to prove that the Plaintiff suffered damage therefrom. Rather, it is difficult to deem that the instant Do Do s and its sar sar sar sar have independent economic value as seen earlier. The number of the instant Do sar and its sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar sar and sar sar sar sar sar sar sar sar sar seb

Therefore, the plaintiff's claim for damages is without merit.

C. Sub-committee

Therefore, the plaintiff's claim against the defendant B on the ground of the violation of the second agency contract against the defendant B is justified within the above scope of recognition, and the remaining claims are without merit.

7. Conclusion

Thus, the plaintiff's claim against the defendant Eul is accepted within the scope of the above recognition, and the plaintiff's remaining claim against the defendant Eul and the claim against the defendant Eul are dismissed as it is without merit. Finally, the plaintiff's claim against the defendant Eul is dismissed.

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