[등록취소(상)][공2014상,124]
[1] Where a person holding a service mark or a person holding a service right uses a service mark to indicate the source of another person's goods or service business, whether it constitutes the use of a service mark to avoid revocation of the registration of the service mark on the ground of non-use (negative)
[2] The case holding that in case where Gap requested a trial to revoke the registered service mark " " on the grounds that the registered service mark " was not used in Korea for not less than three consecutive years before the date a request for revocation was made without any justifiable reasons, the non-exclusive licensee cannot be deemed to have used the mark " inside the four-day shop shop shop shop store of the non-exclusive licensee on the general trade norms to indicate the source of his service
[1] The term "service mark" under the Trademark Act refers to a mark used by a person who carries on a service business for the purpose of distinguishing his/her service business from those of others (Article 2 (2) 2 of the Trademark Act). Thus, in order to recognize the use of a service mark as a result of the non-use of the service mark in an adjudication to cancel the registration of the service mark, the use of the service mark cannot be deemed to constitute the use of the service mark to avoid the cancellation of the registration of the service mark on the ground of non-use.
[2] In a case where Gap filed a trial to revoke the registered service mark on the ground that the registered service mark " "" was not used in the Republic of Korea for three or more consecutive years before the date a request for revocation was made without justifiable grounds, the case holding that in light of the fact that the mark "" inside the registered service mark is indicated separately at the entrance of the registered service mark non-exclusive licensee's four-day shop shop store, and that the mark "" is indicated on the display stand where the four-day net products are displayed inside the store, and that the mark " is known to some extent in the Republic of Korea as the trademark of the four-day four-day four-day polybent, and that the registered service mark is identical to the mark used in the Alphabab, which is composed of only the alphabbb, and is used in the products, it is difficult to view that the non-exclusive licensee's mark "" inside the above four shop shop as advertising "Ses" products or its products are used in its shop or shop.
[1] Articles 2(2)2 and (3), and 73(1)3 of the Trademark Act / [2] Articles 2(2)2 and (3), and 73(1)3 of the Trademark Act
Loraal (Attorney Lee Jae-chul et al., Counsel for the plaintiff-appellant)
Defendant (Patent Attorney Kim Jae-sik et al., Counsel for the defendant-appellant)
Patent Court Decision 201Heo10740 Decided February 17, 2012
The judgment below is reversed, and the case is remanded to the Patent Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. According to the reasoning of the judgment below, the court below determined that the registered service mark "" (registration number omitted) of this case was properly used in the Republic of Korea within three years prior to the date of the request for a trial, on the grounds that the above advertisement is seen or the consumers visiting the above four days shop are aware that the mark of this case, which is indicated inside the store, was indicated as the source mark of beauty and art business, etc., operated by amcoS (hereinafter referred to as "amcoS"), on the ground that the mark of this case, which is marked as the mark of amcos (hereinafter referred to as "the mark of this case"), is marked at the top of the four-day shop shop shop shop shop shop, and the above four-day shop shop advertisement published in the magazine published before September 2010, is also included in such photograph.
2. However, it is difficult to accept the above determination by the court below for the following reasons.
A. The term “service mark” under the Trademark Act refers to a mark used by a person who carries on a service business for the purpose of distinguishing his/her service business from those of others (Article 2(2)2 of the Trademark Act). Thus, in order to recognize the use of a service mark as a result of the non-use of the service mark in an adjudication to cancel the registration of the service mark, the use of the service mark cannot be deemed to constitute the use of the service mark to avoid the cancellation of the registration of the service mark on the ground of non-use.
B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.
(1) The “Esie” is a specialized brand of NAB products, such as NAB products first launched in the U.S. in 1981 by the U.S. Essie Cos Ltd. (ed by the Plaintiff Company around 2010) and is using more than 250,000 NAB products in more than 95 U.S. countries around the world.
(2) The Defendant also imported and sold “Seie” products from around 1996 through a personal business entity, “○○○○○○,” the Defendant’s operation, and MaccoS (hereinafter collectively referred to as “Defendant, etc.”), and used the instant mark on its advertisement, etc. In addition, it was introduced that “Seie” was one of the four-day and beauty brands overseas, and that the four-day-day-day-day-day-use-use-use-use-use-use-use-use-use-use-use-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-
(3) Amateur operated a four-day shop with a brand called “CNtil.” The mark “C Ntil” is marked on the entrance upper part and side of the four-day shop shop shop, and the amcoS also advertised that it operated the four-day shop shop of the brand called “C Ntil” through magazines, etc.
(4) In the case of beauty parlors, there are many cases where the trademark of beauty art products used or sold is displayed on the display stand or wall of the products in the store separately from the trade name or service mark.
C. As can be seen, the mark of this case is marked on the display stand where the four-day products were displayed inside the store. Furthermore, the mark of this case is known to a certain extent in Korea as trademark of the four-day polysh, and the registered service mark of this case is the mark "" composed of only alphabbb, and is identical with the mark used in the siebb, etc., taking into account the fact that the mark of this case, which is indicated inside the above four-day shop, is indicated on the entry of the four-day shop shop, is marked on the display stand where the four-day products were displayed. Furthermore, it is difficult to view that the mark of this case is used to indicate the source of service business in order to advertise the "siee" products imported and sold by the Defendant, etc. under the general trade norms or to inform the use or sale of the "siee products" products at the above four-day shop.
Therefore, in light of the above legal principles, even if the mark of this case was indicated inside the above four-day shop shop or such photograph was included in the advertisement of the above four-day shop shop, it cannot be viewed as the use of the registered service mark of this case to avoid the cancellation of the registration of service mark on the ground of non-use.
3. Nevertheless, as seen above, the court below held that the registered service mark of this case was properly used in Korea within three years before the date of the request for a trial on the cancellation of registration of the service mark on the ground that the registered service mark of this case was not used. The court below erred by misapprehending the legal principles on the use of the service mark in the trial on cancellation of registration of the service mark, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.
4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim So-young (Presiding Justice)