[권리범위확인][공1990.11.15.(884),2160]
Whether the effect of a trademark right where a trademark indicating one's trade name in a common way is used for the purpose of unfair competition after the registration of establishment of another's trademark right has been made (affirmative)
The effect of a trademark right does not extend to a trademark indicating his trade name in a common way, but even such trademark is used for the purpose of unfair competition after the establishment of the trademark right is registered.
Article 26 subparag. 1 of the former Trademark Act
[Plaintiff-Appellant] Korea Electric Co., Ltd. and one other (Law Firm Seo-dae, Counsel for plaintiff-appellant)
Attorney Kim Yong-chul et al., Counsel for the defendant-appellant
Korean Intellectual Property Office Decision 241 dated November 30, 1989
The appeal is dismissed.
The costs of appeal shall be borne by the respondent.
The grounds of appeal Nos. 1 and 2 are examined together.
According to Article 26 subparagraph 1 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereinafter the same), the effect of trademark right does not extend to a trademark indicating one's trade name in a common way, but even such trademark is used for an unfair competition after the establishment of trademark right is registered.
According to the reasoning of the original decision, the court below held that the registered trademark of this case was widely known among consumers at the time when the respondent begins to use the mark under subparagraph (a), and that the use of the mark similar to the registered trademark of this case was presumed to have been used for unfair competition after the establishment of the trademark right of this case was registered, and thus, the mark under the proviso of Article 26 (1) of the former Trademark Act belongs to the scope of the right of the registered trademark of this case. In light of the records, the court below's findings of fact and decision are just and there were no errors in the misapprehension of the rules of evidence and the legal principles under subparagraph 1 of Article 26 of the former Trademark Act as pointed out in the arguments, and the precedents (Law No. 83Hu69 delivered on January 24, 1984) are not appropriate for this case.
Therefore, the appeal is dismissed, 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 on the bench.
Justices Lee Chang-chul (Presiding Justice)