[2] In a case where the facts constituting grounds for revoking trademark rights under Article 73 (1) 1 of the former Trademark Act, which were deleted by the Act No. 535 of Aug. 22, 1997, were completed after the enforcement of the amended Act, whether the grounds for revoking trademark rights under the amended Act are grounds for revoking trademark rights (negative)

[2] Article 73 (1) 1 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) provides that if an owner of a trademark right 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 an exclusive license or a non-exclusive license for the trademark for not less than six months, Article 73 (1) 1 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) was deleted. Article 1 of the Addenda of the amended Trademark Act provides that the effective date of a lawsuit shall be March 1, 1998, and Article 3 of the Addenda provides that "where a lawsuit for cancellation is not completed by the previous provision of the Trademark Act No. 1 of the former Trademark Act (amended by Act No. 5350 of Aug. 22, 1997, the amended provision of the Trademark Act shall be interpreted to be amended by Act No. 175 of the same reason for cancellation.

"Cases where an owner of a trademark right allows another person to use the trademark" under Article 73 (1) 1 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997; hereinafter the same) refers to cases where the owner of the trademark right allows another person to use the trademark as an active act, and it does not include passive neglect or silence (see Supreme Court Decision 98Hu81, Aug.81, 898, 98, 904, 911, Sept. 3, 199).

The court below determined that the Plaintiff Company’s right to the trademark registration number 2 omitted), (trademark registration number 3 omitted), (service mark registration number 1 omitted), and (service mark registration number 2 omitted) of this case at the time of application on October 1995 based on its employment evidence (hereinafter “non-party corporation”) was established as non-party company’s non-exclusive use right at the time of transfer to the Plaintiff Company (which was registered (trademark registration number 1 omitted) for 300 million won, and that the Plaintiff did not transfer the trademark to the Plaintiff on March 16, 1998 and July 10 of the same year on the ground that the Plaintiff did not transfer the trademark to the Plaintiff on the ground that it was not registered as non-party corporation’s non-party corporation’s trademark registration number 1 omitted, (hereinafter “non-party corporation’s non-party education”) and that it was hard to view the above registered trademark as the act of transfer to non-party corporation and non-party corporation’s non-party corporation’s right to use the trademark in relation to the above newspaper and non-party education.

In light of the records and the above legal principles, the above judgment of the court below is just, and there is no error of misconception of facts or incomplete hearing in violation of the rules of evidence as alleged in the grounds for appeal.

2. Regarding ground of appeal No. 2

Article 73(1)1 of the former Trademark Act, which provides that if a trademark right holder allows another person to use a trademark identical or similar to his/her registered trademark without registering the establishment of an exclusive or non-exclusive license for at least six months on goods identical or similar to the designated goods, has been deleted pursuant to the amended Trademark Act as of August 22, 1997, and Article 1 of the Addenda of the amended Trademark Act as of March 1, 1998 provides that the enforcement date of the above Act shall be March 1, 1998, and Article 3 of the Addenda provides that an application for trademark registration is made before this Act enters into force due to transitional measures concerning adjudication, renewal of trademark registration and additional application for designated goods shall be governed by the previous provision of the Trademark Act, and it is reasonable to interpret the above provision of the former Trademark Act as to a trial and lawsuit as to a trademark registered pursuant to Article 3 of the Addenda of the former Trademark Act as of the enforcement date (Article 73(1)1 of the former Trademark Act, unless there is any special reason for cancellation or cancellation of the trademark right.

The court below did not decide whether to allow the use of a trademark after March 16, 1998 under the amended Trademark Act, only when the facts constituting the grounds for revocation under Article 73 (1) 1 of the former Trademark Act were commenced prior to the enforcement of the amended Trademark Act on August 22, 1997, on the ground that the above provision applies to the case where the above provision was enforced prior to the enforcement of the amended Trademark Act, and it is inappropriate that the former Act applies to the case where the relevant facts for revocation were not completed prior to the enforcement of the amended Trademark Act. However, in this case where the facts for revocation were not completed prior to the enforcement of the amended Trademark Act, the court below was justified in its conclusion that the determination of whether the grounds for revocation occurred after the enforcement of the amended Trademark Act could not affect the cancellation of the trademark right. Accordingly, the court below did not decide on the above facts, and it did not err in the misapprehension of legal principles under Article 73 (1) 1 of the former Trademark Act and Articles 1 and 3 of the Addenda of the Trademark Act, which affected the decision. The judgment cited in the grounds for appeal is inappropriate.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)