[권리범위확인][집30(3)특,299;공1983.1.15.(696)91]
In the procedure to confirm the scope of a registered trademark right, the respondent's assertion that his/her used trademark does not affect the effect of the registered trademark under Article 26 (1) of the Trademark Act
A request for confirmation of the scope of a trademark right under Article 43(1)3 of the Trademark Act is not merely for the purpose of fact-finding to confirm the technical scope of the trademark itself, but for the purpose of confirmation of the right to confirm the effect of the registered trademark on the trademark in relation to the trademark of the other party which is specifically at issue based on its technical scope. Thus, if the other party's used trademark falls under a trademark with no effect of the trademark right such as his name, name, trade name, etc. under each subparagraph of Article 26 of the Trademark Act, it shall not be deemed to fall under the scope of the right of the registered trademark. The trademark right cannot be deemed to fall under the scope of the right of the registered trademark, and the trademark right cannot be deemed to fall under the case where the trademark right holder can assert the use of the trademark by the right of use separately established. Accordingly, in the procedure for confirmation of the scope of the right of this case, the trademark (A) mark is indicated in the name or its abbreviation widely known prior to the application for the registered trademark, which constitutes a trademark under Article 26 subparagraph 1 of the Trademark Act.
Article 26 subparagraph 1 of the Trademark Act and Article 43 (1) subparagraph 3 of the Trademark Act
claimant
Dong Western Industrial Company
Korean Intellectual Property Office Decision 98 delivered on March 31, 1982
The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Office Appeal Office.
1. We examine the second ground for appeal by the attorney of the respondent.
(1) According to the reasoning of the original decision, the trademark (A) is indicated in a common way by which the respondent usually uses the name or well-known abbreviation of the respondent, which was used and widely known to the same product prior to the application of the registered trademark, and thus, constitutes Article 26 subparagraph 1 of the Trademark Act, and thus does not affect the effect of the registered trademark right. The court below rejected the above assertion by the respondent on the ground that even if the above assertion is true, the respondent may assert that the trademark of this case does not extend to the trademark of this case under Article 26 subparagraph 1 of the Trademark Act, which is the name or well-known title of the respondent, under Article 26 subparagraph 1 of the Trademark Act.
(2) However, a claim for confirmation of the scope of a trademark right under Article 43(1)3 of the Trademark Act is not merely for the purpose of confirming the technical scope of the trademark itself, but is for confirmation of the right to confirm the effect of the registered trademark right in relation to the relationship with the other party’s used trademark at issue based on the technical scope.
Therefore, if the trademark used by the other party falls under a trademark which does not have the effect of trademark rights such as his name, name, trade name, etc. under each subparagraph of Article 26 of the Trademark Act, it shall not be deemed to fall under the scope of the right of the registered trademark, and the trademark right shall not be deemed to fall under the scope of the right of the registered trademark.
If so, the court below should not make a hearing and determination on whether the mark of this case falls under the trademark under Article 26 subparagraph 1 of the above Trademark Act or not, notwithstanding the fact that the court below did not reach such a conclusion, it cannot be said that the court below committed a crime of illegality in the omission of judgment and the omission of judgment.
2. Therefore, without examining other grounds of appeal, we reverse the original decision and remand the case to the Korean Intellectual Property Office Appeal Trial Office. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee Lee Sung-soo (Presiding Justice)