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Cases

Osaka District Court's judgment on 17th October 2013
Fact
F

    On 3rd October 2008, the plaintiff obtained the following trademark:
gRAGGAZZAh (designated goods: clothes and shoes).
The plaintiff claimed to the defendant an injunction against the use of the mark
gRagazzah and compensation for the infringement of the above trademark. Lawyer Kotaro Kageyama and lawyer Sawako Sonoyama of Kageyama International Law & Patent Firm served as defendantsf representatives.
Judgment:
    The Osaka District Court dismissed the plaintifffs claims because of the following reasons, deciding that the plaintifffs claim was an abuse of its rights, and that the plaintiff could not show the Plaintifffs trademark had been widely known among the users.

Reasons:
1. The plaintiff has been using a mark gRAGAZZAh on its goods, however it obtained the trademark gRAGGAZA,h adding one more gGh on gRAGAZZAh;
2. The plaintiff filed an application for a trademark right on gragazzah on 18th May, 2012,  however the application was dismissed for the reason that gragazzah was an Italian word meaning a girl or young lady, which simply indicated the quality of the consumer suitable for the goods;
3. The above application was made when the sales of the defendant's goods was started. It was 4 years after the application for gRAGGAZAh was filed. It is assumed that the plaintiff had restrained oneself from filing an application, considering the above reasons;
4. The plaintiff insisted that the defendantfs gRagazzah was similar to the plaintiff's registered trademark gRAGGAZZA,h presupposing that gRAGGAZAh originated in gragazzah in Italy, on the other hand, in an action of nullity for gRagazza,h the plaintiff claimed that gRagazzah was not a word relating to gragazzah in Italy, but a coined word created by using alphabet letters. This is against estoppel.

Supreme Court's judgement on 20th December, 2008 (Hanrei-jiho, No.2040: p.16; Hanrei-Times, No.1295: p.183)

    In this case, the special agreement in a finance lease contract to terminate the contract by reason of the petition for the corporate rehabilitation was judged to be invalid because such an agreement was against the purpose of rehabilitating business in the proceedings of the civil rehabilitation. In the judgment of the first trial in the Tokyo District Court on 10th June 2004 (Hanrei-times No.1185: p.315), the payment of 110,000,000 yen as damage equivalent with the lease fee of the articles (adding the damages of 37,000,000 yen which arose until the return of the lease articles) was ordered. Then lawyer Kageyama was appointed as attorney in the second trial in the Tokyo High Court. In the judgment of the Tokyo High Court on 14th March 2007 (Hanrei-times No.1246: p.337), the damages were decreased to 921,942 yen.
The Supreme Court supported the decision of the Tokyo High Court. This judgment was a new decision on dealing with common lease matters in bankrupt cases and has a great effect in practice as turning point in this kind of cases

.

Supreme Court's judgment on 8th November 2005 (Minshu Vol.59, No.9, p.2333) Case on annulment of a fraudulent deed.
Tokyo High Court's judgment on 13th October 2004 (Hanrei-taimuzu No.1181, p.133)
Tokyo District Court's judgment on 9th September 2003 (Hanrei-taimuzu No.1181, p.133)

   
K Club Co., Ltd. is a limited liability company having a famous golf club in Japan, called gH Golf Club.h Since K Club is a wholly-owned subsidiary of N Kogyo Co., Ltd. whose objects is also the management of golf course etc., in January 1993, N Kogyo put real estates of H Golf Club in pledge under the 20-billion-yen mortgage agreement between N Kogyo and A Bank in order to secure the payment of N Kogyofs debt to A Bank.
   After that, on 3rd July 1998, the Tokyo District Court decided to order K Kogyo the Composition Law to be applied, and then, on 22nd July 2002, decided to order it to be rehabilitated according to the Civil Rehabilitation Law.
    On 2nd August 2002, the Court decided to order K Club to be rehabilitated according to the Civil Rehabilitation Law, however that was recalled on 30th January 2003. On 7th February 2003, the Court decided to order it to be reorganized according to the Company Reorganization Law.
    On 1st March 1999, K Club, A Bank, and N Kogyo agreed that K Club would subrogate N Kogyo and pay the 6 billion yen debt against A Bank by installments not later than every last day of March, June and September from September 2001 to September 2013, and resigned the claim for compensation against N Kogyo.
    On 13th March 2002, the above credit of A Bank was transferred to Cayman Islands company, S Corporation.
    At the beginning, members of H Golf Club sued against A Bank to cancel the registration of the revolving mortgage on the basis of the right of the annulment of a fraudulent deed under Article 424-1 of Civil law, however the credit rights had been transferred from A Bank to S Corporation, and consequently, A Bank withdrew from the sue and S Corporation took part in.
    Since the Court decided to order K Club to be rehabilitated according to the Civil Rehabilitation Law, the supervisors under 140-1 of Civil Rehabilitation Law took over the action. Then, Company Reorganization Law was applied to K Club, and the administrators succeeded the supervisors under Article 93-2 and 69-1 of the previous Company Reorganization Law.
    The Tokyo District Court, a court of first instance, decided that a fraudulent deed damaging creditors of the reorganization company is gobjectively the one which led the reorganization company into the situation of lacking fundsh and this establishment of the revolving mortgage led the company into the situation of lacking money. Furthermore, the Court decided that there was no need for the management of K club under the Company Reorganization Law to establish this revolving mortgage, as a result, it was obvious that this was objectively a fraudulent deed damaging creditors of the reorganization company. The Court concluded that K Club and A Bank had known that this establishment of the revolving mortgage was a fraudulent deed damaging creditors of the reorganization company.
    The Tokyo High Court explained that gthe situation of lacking fundsh meant a situation where the company became unable to pay a full debt because of the decrease of the assets. The following another point at issue was added: whether or not, the exercise of the right of avoidance against the contract of the establishment of the revolving mortgage extended only to the level of the excess of the debt at the time of a fraudulent deed. The court answered that the purpose of the exercise of the right of avoidance under the Company Reorganization Law was to allot profits and loss among many persons having an interest of the company, as one of the rights to promote the process of the company reorganization, and that the time before or after the bankruptcy, the principle of the equalitarian of creditors must be strengthened, consequently, its sphere must be wider than that of creditorfs right of avoidance under Article 424 of Civil Law.
    In this case, although K Club is a 100%-owned subsidiary of N Kogyo, it is an independent reorganization company. From this point of view, this establishment of the revolving mortgage on H Golf Club was a kind of disposition by free of charge. The object of this right of avoidance is a golf course, that is, one identity with the parts working in coordination which constitutes of a full of real estates under one contract, therefore the sphere of the right of avoidance extends to the whole contract of this establishment of the revolving mortgage. This understanding can contribute to the reorganization of the company and also the strengthening of the principle of the equalitarian of creditors.
    The Supreme Court decided that the administratorsf exercise of right of avoidance under Article 78-1-1 of old Company Reorganization Law toward a fraudulent deed damaging creditors or mortgage creditors of the reorganization company should extend to the whole object with the reasons that: it was exercised as onefs duty by administrators who can control the whole assets of the reorganization company in order to restore the general assets to its original state and maintain the business of the company; therefore there is no limit like the amount of credit of the person who, on the basis of the right of the annulment of a fraudulent deed, exercises the right of avoidance in order to protect onefs personal credit under Article 424 of Civil Law; and when the administrator exercises the right of avoidance, the amount of the reorganization credits, reorganization mortgage, the value of the assets belonging to the reorganization company are not confirmed.

Tokyo District Court's judgement on 15th April, 2002 (Hanrei-jiho, No.1792: p.129)
    A publisher "Kobunsha" published a book called "Sekai-Gokujo-Hoteru-Jutsu" (Technique on using excellent hotels in the world) in June 2001. The book edited the comments written anonymously on the notice-board of an Internet home-page called "Hotel Junkies." Then, the writers of those comments brought a case against the publisher before Tokyo District Court for the reason that the publisher made infringement of the writers' copyrights on the comments. On 15th April 2002, the Court laid a ban on the publisher selling the books and ordered it to pay 1.4 million yen to the writers.


Court's Judgement
    Most of writers' comments on the notice board show personal characteristics and therefore they can be regarded as works of copyright with creativity.
Short comments which simply describe about facts cannot be regarded as works of copyright due to lack of creativity.
    The publisher made negligence in not inquiring the allowance of publication from the writers of the comments.


Plaintiff's Legal Representative Kotaro Kageyama's comments

    Most of recent home-pages clearly indicate to whom the copyrights of comments on notice-board belong, and therefore the trouble like this case can be avoided. In the judgment, there was no notice of who possesses the copyrights of the comments on the notice-board, and therefore it is noteworthy that the copyrights were recognized on the works anonymously in the notice board.