등록무효(상)
The judgment below is reversed, and the case is remanded to the Patent Court.
The grounds of appeal are examined.
1. In order to constitute a trademark, which is subject to a request for a trial for invalidation of registration, is likely to deceive consumers as prescribed by Article 7(1)11 of the former Trademark Act (wholly amended by Act No. 14033, Feb. 29, 2016; hereinafter “former Trademark Act”), other trademarks compared to the registered trademark or designated goods (hereinafter “pre-use trademark”) or products using the trademark are not necessarily required to be well-known, but at least in general transactions in the Republic of Korea, to the extent that it is recognizable as a trademark or goods of a specific person if the trademark or goods are said to be said to be a trademark or goods of a specific person, and the determination shall be based on the time of determining the registration of the trademark.
(See Supreme Court Decisions 2006Hu3113 Decided June 28, 2007, and 2004Hu1304 Decided July 28, 2006, etc.). In order to recognize a specific person as a trademark or product, the pre-use trademark does not necessarily necessarily have to be known to a consumer or a trader in the Republic of Korea throughout the country. Whether a specific person’s trademark is recognized as a trademark should be determined on the basis of whether the pre-use trademark was objectively and reasonably known to the general public in light of the period of use, method, mode, scope of use, and transaction circumstances of the trademark.
This legal principle also applies to service marks under Article 2 (3) of the former Trademark Act.
2.(a)
The judgment below
According to the reasoning and evidence duly admitted by the court below, the following circumstances are revealed.
1. On September 20, 2001, before the establishment of the defendant, J registered the business of "online information provision business" with the trade name of Sep. 20, 2001, which was before the establishment of the defendant, and I, the spouse of J and the representative director of the defendant, began to engage in the consulting business and the trading lending business in full name from July 2005 to July 2005.