[2] The case holding that the goods of the registered trademark are not within the scope of the designated goods identical to the designated goods in a request to revoke trademark registration due to non-use

[2] The case holding that, where the designated goods of the registered trademark are rice, barley, glusium, glusium, glusium, and products using the registered trademark are mixed with several kinds of grains and glusiums at a certain rate, products using the registered trademark are not within the designated goods identical to the designated goods of the registered trademark in light of the social norms of the trade society

According to Article 73(1)3 and (4) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997; hereinafter the same), if any trademark right holder, exclusive or non-exclusive licensee fails to use the registered trademark (if another registered trademark combined with the registered trademark exists, either of the registered trademark or the registered trademark) in the Republic of Korea for three or more consecutive years before the date on which a request for revocation is made without justifiable grounds, the trademark registration shall be revoked by a trial. Here, where the registered trademark is not used for the designated goods, the term "where the registered trademark is not used for the designated goods" refers to the time the registered trademark is not actually used for the designated goods itself or on goods that can be seen as identical to the registered goods in light of the common sense of the trade society, and it cannot be deemed that the registered trademark was used for the designated goods

According to the reasoning of the judgment below, the court below acknowledged that the designated goods of the registered trademark of this case (registration number omitted) of this case are so-called ceanite health foods mixed with various kinds of grain and vegetable products in certain rates, etc., and since some of the designated goods of the registered trademark of this case are included in the ingredients of the food, even if they are included in the part of the food ingredients, it is difficult to view that the designated goods of the registered trademark of this case within the scope of identity of the designated goods of the registered trademark of this case, which are merely grain or grains, within three years prior to the date of the request for a trial, since there is no evidence to acknowledge that the registered trademark of this case were properly used within three years prior to the date of the request for a trial, the registered trademark of this case cannot be exempted pursuant to Article 7 (1) 3 of the former Trademark Act.

In light of the records, we affirm the above judgment of the court below and there is no error of law by misunderstanding the legal principles as to Article 73 (1) 3 of the former Trademark Act or by misunderstanding of facts, which affected the conclusion of the judgment.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)