(영문) 대법원 1996. 5. 16. 선고 93도839 전원합의체 판결[상표법위반][집44(1)형,1041;공1996.6.15.(12),1783]
Where a trial decision on invalidation of trademark registration becomes final and conclusive after an act infringing a trademark right, whether such act constitutes a trademark infringement under Article 93 of the Trademark Act (negative)
Even if the act of infringing the right to registered trademark of another person was conducted before the decision invalidating the trademark registration becomes final and conclusive, if the decision invalidating the trademark registration becomes final and conclusive, the trademark right infringed was not existed from the beginning. Thus, such act cannot be deemed as a trademark infringement under Article 93 of the Trademark Act.
Articles 93 and 71(3) of the Trademark Act
Supreme Court Decision 82Hu26 delivered on April 10, 1984 (Gong1984, 820) Supreme Court Decision 87Hu4, 87Hu5 delivered on February 28, 1989 (Gong1989, 533), Supreme Court Decision 87Hu139 delivered on March 28, 198 (Gong1989, 683), Supreme Court Decision 90Do1534 delivered on September 25, 1990 (Gong190, 227), Supreme Court Decision 90Do2636 delivered on January 29, 191 (Gong191, 904), Supreme Court Decision 94Do3052 delivered on May 9, 1995 (Gong194, 904), Supreme Court Decision 94Do30529 delivered on May 29, 195)
Defendant
Prosecutor
Seoul Criminal District Court Decision 92No7113 delivered on February 23, 1993
The appeal is dismissed.
The prosecutor's grounds of appeal are examined.
If a trademark is registered, the right as a registered trademark shall be held, even if there is a ground for invalidation of the trademark, until the decision to invalidate the trademark becomes final and conclusive by a trial and becomes final and conclusive. However, if a trial decision to invalidate the trademark registration becomes final and conclusive, the trademark right shall be deemed not to have existed from the beginning (Article 71(3) of the Trademark Act) or unlike the time a trial decision to revoke the trademark right becomes final and conclusive (Article 71(3) of the Trademark Act). Meanwhile, in light of the fact that the time a trial decision to invalidate the trademark right or a trial decision to invalidate the trademark right becomes final and conclusive as one of the grounds for retrial (Article 420 subparagraph 6 of the Criminal Procedure Act), even if a trial decision to invalidate the trademark right of another person becomes final and conclusive prior to the final and conclusive decision to invalidate the trademark registration, the trademark right infringed if the trial decision to invalidate the trademark right becomes final and conclusive, such act cannot be deemed to constitute a trademark infringement under Article 93 of the Trademark Act. Even in cases where a trademark registration becomes final and conclusive by a trial decision to invalidate the trademark registration becomes final and conclusive.
In the above purport, the court below's decision maintaining the judgment of the court of first instance which acquitted the defendant on the ground that the decision of invalidation of registration became final and conclusive prior to the prosecution of this case on the trademark right which was infringed by the defendant, and that the defendant did not infringe another person's trademark right is just, and there is no error of law by misunderstanding the legal principles on the validity of the trademark right like the theory of lawsuit or by violating the precedents of party members.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Chief Justice Yoon-young (Presiding Justice) (Presiding Justice) and Justice Kim Jong-soo Park Gyeong-ho (Presiding Justice)