Bucheon Damages Attorney | Client Sued for Copyright Infringement Obtains a Reduction of Half the Claimed Amount With Daeryun's Help

The Bucheon damages attorney grasped the circumstances of the case through a consultation with the client at the 🔗Daeryun Bucheon Office.

The client had imported home exercise equipment from abroad and was selling it on a well-known domestic online shopping mall, when a competitor sued for damages, claiming that the client had copied its packaging design, instruction manual, and detailed product description within the shopping mall.

However, the client had once before been reported by that competitor on a charge of copying its packaging design and had paid a settlement amount.

Yet the competitor brought suit once again, claiming that its product was created after long research, holds a high level of recognition, and that the client had therefore violated the Unfair Competition Prevention and Trade Secret Protection Act.

🔗The Unfair Competition Prevention and Trade Secret Protection Act is a statute enacted to prevent acts of unfair competition that, by improper means, harm the interests of a person engaged in the same kind of business.

▣ Unfair Competition Prevention and Trade Secret Protection Act Article 2

1. “Act of unfair competition” means any of the acts falling under the following items:

(a) An act of, without justifiable grounds falling under any of the following, using a name, trade name, trademark, container or packaging of goods, or any other mark indicating another person's goods that is widely recognized in Korea, or one identical or similar thereto, or selling, distributing, importing, or exporting goods bearing such a mark, thereby causing confusion with another person's goods.

(b) An act of, without justifiable grounds falling under any of the following, using a name, trade name, emblem, or any other mark indicating another person's business that is widely recognized in Korea (including the overall appearance of the place where the business is provided, such as the method of selling goods or providing services, or a signboard, exterior, or interior decoration; hereinafter referred to as “another person's business mark” in this item), or one identical or similar thereto, thereby causing confusion with another person's business facilities or activities.

Under Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act, the meaning of a mark indicating another person's goods being “widely recognized in Korea” is satisfied where it is known among traders or consumers within a certain regional scope in Korea, and whether it is a widely known trademark or the like is to be objectively judged on the basis of the period, method, and manner of use, the volume of use, the scope of trade, the actual conditions of goods transactions, and common social notions.

- Supreme Court, Judgment of May 9, 2012, 2010Do6187

■ Punishment for Violation of the Unfair Competition Prevention and Trade Secret Protection Act

A person who commits an act of unfair competition may be subject to imprisonment of up to ten years or a fine of up to 500 million won.

However, in the case of a fine, where the amount equal to ten times the property gain resulting from the act of unfair competition exceeds 500 million won, the person may be subject to a fine of not less than twice but not more than ten times that property gain.

The plaintiff argued that its product had held the number one position in the exercise equipment category on online shopping malls for a long time, that it had a substantial number of product reviews, and that numerous searches were being conducted under keywords bearing the plaintiff's brand, so it had a high level of recognition.

However, the shopping malls in which the plaintiff held the number one position were sites with relatively low recognition and few users, and on the shopping mall with the largest number of users, the client's product ranked higher in sales.

The attorney therefore emphasized that this was insufficient to establish the “wide recognition in Korea” required under the Unfair Competition Prevention and Trade Secret Protection Act.

The client's product was imported from China, and its selling price is set far lower than that of similar products.

The attorney therefore argued that the client's product sold well not because it copied the plaintiff's design, but because it was of good quality and had strong price competitiveness.