[2] Whether an interest in seeking the cancellation of registration of a trademark may be deemed extinguished where a person who requested the revocation of registration of a trademark similar to the designated goods of the same kind as the designated goods of the registered trademark has received the registration of another designated goods (negative)

[3] Whether the registration of a combined trademark may be revoked in a case where the trademark right of the combined trademark was transferred to the same person after a request for revocation of registration was made for the reason that the trademark right of the combined trademark was not transferred together with the trademark right of the combined trademark, but the time of transfer was after the conclusion of fact-finding trial (affirmative)

[2] Whether registration of a similar trademark should be judged individually by designated goods. Thus, as long as a claimant has rejected registration of a similar trademark as to the designated goods of the same kind as the designated goods of the registered trademark, even if the claimant has received registration of another designated goods, it cannot be deemed that the interest in claiming the cancellation of registration of each registered trademark has ceased immediately.

[3] In a case where the facts constituting the grounds for a request for a trial to revoke a trademark registration on the grounds that fall under Article 73(1)4 and (2) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997), have ceased to exist after a request for a trial to revoke a trademark registration on the grounds that the trademark rights of the combined trademark have not been transferred together with the trademark rights, and where the trademark rights of the combined trademark have been transferred to the same person, the registration of the combined trademark cannot be revoked due to the opposite interpretation of Article 73(5) of the same Act. However, this is limited to the case where the grounds for revocation have been extinguished prior to the closure of a trial at a fact-finding court, and the assertion of such facts can only be made prior to the closure of a trial at a fact

1. On the first ground for appeal

If a claimant, while using a trademark identical or similar to the registered trademark in a foreign country, used the trademark in the same or similar to the registered trademark in the foreign country, and received a ruling of rejection on the ground that the trademark identical or similar to the registered trademark in this case or its associated trademark is identical or similar to the combined trademark in the Republic of Korea, barring any special circumstance, the claimant shall be deemed to have a direct and realistic interest in the extinguishment of the registered trademark in this case as a person who intends to use the trademark identical or similar to the registered trademark in the Republic of Korea for the same kind of designated goods (see, e.g., Supreme Court Decision 97Hu319, 3326, Dec. 22, 1998). The registration schedule of the similar trademark shall be determined individually by each designated goods. Thus, if the claimant has rejected the registration of a trademark similar to the designated goods of the same or similar trademark in the designated goods of this case, even if it was later registered on other designated goods, it cannot be deemed that the trademark has ceased to have been registered immediately.

According to the reasoning of the judgment of the court below, the court below, after compiling the admitted evidence, found that the claimant has received the ruling of rejection by applying for the trademark of this case and the trademark similar to the trademark of this case, and that he carries on the same kind of business as the claimant, and in light of these circumstances, the claimant is an interested party to request the revocation of the registration of the registered trademark. In light of the records and the above legal principles, the court below's fact-finding and decision are just, and there is no error of law such as violation of the rules

2. On the second and third grounds for appeal

According to the reasoning of the decision of the court below, the court below determined that the registered trademark of this case is in a combined trademark relationship with the cited trademark 2 (registration number omitted), and the trademark right of the cited trademark 2 is identical or similar to the designated goods and the trademark right of the cited trademark 2 is transferred from the Nonparty only to the respondent on November 14, 1987. This constitutes a ground for cancellation of trademark registration under Article 73 (1) 4 and (2) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997). In light of the records, the judgment of the court below is just, and there is no violation of the rules of evidence against the rules of evidence as otherwise alleged in the ground for appeal.

In addition, in the case where the facts constituting the grounds for a trial to revoke a trademark on the grounds falling under Article 73 (1) 4 and 73 (2) of the former Trademark Act have ceased to exist after requesting a trial to revoke a trademark registration on the grounds that the trademark rights of the cited trademark have not been transferred together, that is, in the case where the trademark rights of the associated trademark have been transferred to the same person after requesting a trial to revoke a trademark registration on the grounds that the trademark rights of the associated trademark have not been transferred together, the registration of the associated trademark cannot be revoked due to the opposite interpretation of Article 73 (5) of the former Trademark Act, as pointed out in the grounds of appeal. However, the assertion is limited to the case where the grounds for revocation have been extinguished before the closure of the trial which is a fact-finding court, and the submission of such assertion can only be made before the closure of the trial at a fact-finding court, which is a law-finding court, and even if based on the grounds of appeal, it cannot be found that the trademark rights of the cited trademark 2 were transferred to the trademark owner prior to the conclusion of the grounds for appeal.

3. All of the grounds for appeal cannot be accepted.

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 In-hee (Presiding Justice)