[2] In a case where a trademark right holder Gap of the registered trademark " " "," and the challenged mark " " "," which used the registered trademark " ", is identical or similar to the registered trademark and designated goods also belong to the scope of the right of the registered trademark, the case holding that the judgment below erred by misapprehending the legal principles, which held that the challenged mark " does not fall under the scope of the right of the registered trademark, on the ground that Eul has "the right to continue to use the trademark due to prior use"

[2] In a case where a trademark right holder Gap of the registered trademark " "" claimed confirmation of the scope of the right of the registered trademark " " " " " " "," which is identical or similar to the registered trademark " " and designated goods are identical or similar to the appearance, the designated goods also belong to the scope of the right of the registered trademark, the case holding that the court below erred by misapprehending the legal principles in holding that the challenged mark used in " Taekwondo clothes" does not fall under the scope of the right of the registered trademark as designated goods on the ground that the trademark right holder Gap has the right to use the registered trademark "," although the above provision is not applicable to the registered trademark applied and registered before July 1, 2007, and it does not fall under the scope of the right of the registered trademark "the right to use the trademark pursuant to the prior use" under Article 57-3 of the Trademark Act (hereinafter "right to use the trademark").

The affirmative confirmation of the scope of a trademark right is for the purpose of confirming whether a claimant has a trademark right against the challenged mark which is the object of a trial in his/her request, and the trial decision becomes final and conclusive, the effect of res judicata extends to not only the parties to the trial but also third parties. However, the fact that the respondent in a request for confirmation of the scope of active rights holds the right to continue to use the trademark due to the prior use (hereinafter referred to as "right to use the trademark due to the prior use") under Article 57-3 of the Trademark Act with respect to the challenged mark is merely a ground for restriction on the exercise of trademark right, which is the object of confirmation, and it is irrelevant to the confirmation of the right to the effect of the trademark right. Thus, it is not allowed to examine and determine the existence of the right to use the prior use in the affirmative confirmation of the scope of a trademark right, which is not the infringement lawsuit (see, e.g., Supreme Court Decisions 82Hu24, Oct. 26, 1982; 2010>

According to the reasoning of the judgment below, the court below determined that the trademark of this case (the application date, March 10, 2006, the registration number omitted) in which the challenged mark " "" used in the Taekwondo clothes" was designated as the designated goods on the ground that the defendant's prior use right belongs to the scope of the right of the trademark of this case (the application date, March 10, 2006, the registration number omitted).

In light of the above legal principles, the judgment of the court below is erroneous in the misapprehension of legal principles as to the confirmation of the scope of a patent right, which affected the conclusion of the judgment. Furthermore, Article 57-3 of the Trademark Act was newly established when the amendment was made by Act No. 8190 on January 3, 2007, and Article 7 of the Addenda provides that "the amended provisions of Article 57-3 provide that "the first time after July 1, 2007, with respect to a trademark for which another person files an application for trademark registration and is registered, the prior user satisfies the requirements of the amended provisions," and the above provision is not applicable to the registered trademark of this case filed before July 1, 2007. Thus, the above provision is not applicable to the registered trademark of this case, and the judgment of the court below is erroneous in the misapprehension of legal principles as to the applicable period of Article 57-3 of the Trademark Act, which affected the judgment.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)