[등록취소(상)][공2000.10.15.(116),2033]
The meaning of "other persons" under Article 73 (1) 1 of the former Trademark Act, and whether a person who uses a registered trademark under the supervision of the trademark right holder for operating income of the trademark right holder after establishing a partnership with the trademark right holder, or a principal partnership with the trademark right holder, constitutes "other persons" under the above provision (negative)
Article 73 (1) 1 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) provides that where a trademark right holder allows another person to use a trademark identical with or similar to his/her registered trademark on goods identical with or similar to the designated goods without registering the establishment of an exclusive or non-exclusive license, for at least six months, one of the grounds for revocation of trademark registration. The other person at that time refers to a person who independently conducts business activities under his/her own calculation and responsibility as a business entity separate from the trademark right holder, and a person who uses the registered trademark under the supervision of the trademark right holder for operating profits of the trademark right holder cannot be deemed as falling under the grounds for revocation of trademark registration.
Article 73 (1) 1 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) (current deletion)
Supreme Court Decision 88Hu943 delivered on May 23, 1989 (Gong1989, 1003) Supreme Court Decision 95Hu1865 Delivered on February 14, 1995 (Gong1995Sang, 1340) Supreme Court Decision 97Hu2002 Delivered on May 15, 1998 (Gong198Sang, 1636)
Plaintiff
Defendant (Attorney Park Jong-jin, Counsel for the defendant-appellant)
Patent Court Decision 99Heo7315 delivered on March 30, 2000
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. Article 73(1)1 of the former Trademark Act (amended by Act No. 535), where a trademark right holder allows another person to use a trademark identical or similar to his/her registered trademark on goods identical or similar to the designated goods without registering the establishment of the exclusive or non-exclusive license, for not less than six months, is prescribed as one of the grounds for revocation of trademark registration. The other person at that time refers to a person who independently conducts business activities under his/her own account and responsibility as a business entity separate from the trademark right holder, and a person who uses the registered trademark under the supervision of the trademark right holder for operating income of the trademark right holder, by establishing a business relationship with the trademark right holder or a principal business relationship with the trademark right holder (see Supreme Court Decision 93Hu1865, Feb. 14, 1995).
2. In full view of his employment evidence, the court below acknowledged the facts that the plaintiff and the defendant engaged in the business of a specialized restaurant and used the plaintiff's registered service mark in this case for not less than 6 months pursuant to the partnership agreement between the plaintiff and the defendant. Under the facts of this case, the court below held that the use of the service mark in this case in the above business was merely used under the mutual supervision for the joint business profits of the plaintiff and the defendant in the partnership with the plaintiff and did not allow others to use the trademark. The court below did not err in the misapprehension of the legal principles of the above, or in the misapprehension of the legal principles as to the illegal reasons or the relation of the partnership or the identity of others provided in the above legal provisions.
The precedents contained in the grounds of appeal are inappropriate to be invoked in the instant case, unlike the case.
We cannot accept the arguments in the grounds of appeal.
3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Shin Shin-chul (Presiding Justice)