[2] The case holding that Gap and Eul are still entitled as the respondent in the judgment on cancellation of trademark as the trademark right holder in relation to the claimant on the ground that the effect of the decision does not extend to the claimant, and the trademark registration of Gap and Eul is revoked, in case where the intervenor who assisted in the judgment on cancellation of trademark registration filed a separate claim against the beneficiary Gap and subsequent purchaser Eul, and the judgment was executed before the lawsuit on cancellation of trademark registration was pending with the Supreme Court and the lawsuit on cancellation of trademark

[3] The case holding that the court below erred in the misapprehension of legal principles as to the identity of a trademark, even though the use of the trademark in actual use constitutes the use of a trademark in a form that can be seen as identical to the registered trademark in light of the common sense of the trade society, on the grounds that it cannot be deemed that the trademark in actual use is a separate mark distinct from that of the registered trademark in ordinary consumers or traders

[2] The case holding that Gap and Eul are still entitled to a trademark right holder in relation to the claimant on the ground that the effect of the decision is not attributable to the claimant, and the trademark registration of Eul and Eul is still qualified as the respondent in the judgment on the cancellation of trademark registration, in case where the supplementary intervenor in the judgment on cancellation of trademark registration against the beneficiary Gap and subsequent purchaser Eul in the lawsuit for cancellation of fraudulent act, which became final and conclusive and conclusive and the lawsuit for cancellation of trademark registration is pending in the Supreme Court

[3] The case holding that the judgment below erred by misapprehending legal principles as to the use of a trademark in actual use since the phrase " " " "," "," ", " "," and " " added was added to " " " "," which are actually used trademarks, and the size of characters is small than the above part of the registered trademark, and combined with a certain distance and at a certain distance, and the shape of the use is deemed to be an additional part of the registered trademark in itself, such as the difference between the registered trademark and the color, etc. in some of the above trademarks, and it is deemed that "the novel is widely known" is an additional expression emphasizing the guidance or reputation of the registered trademark, and thus, it cannot be deemed that another new concept is formed in combination with the above registered trademark, since it is merely an additional expression emphasizing the guidance or reputation of the registered trademark.

1. Regarding ground of appeal No. 1

The record reveals that the Defendant is a person engaged in the business of manufacturing and selling the instant registered trademark (registration number No. 285848), which is the designated goods of the instant registered trademark (registration number No. 2858). However, there is no evidence to deem that the Defendant is a person under the control of Nonparty 1, one of the co-owners of the instant trademark right, and there is no possibility that the instant trademark right might be contested. Accordingly, the Defendant is an interested person who can request a trial on the cancellation of registration of the instant registered trademark on the ground of non-use under Article 73

Meanwhile, the revocation of the fraudulent act by exercising the right of revocation under Article 406 of the Civil Act and restitution of the deviation property to the original state is only effective in relation to the creditor, beneficiary, or subsequent purchaser, and it does not directly acquire the debtor's right (see Supreme Court Decision 98Du11458, Dec. 8, 2000, etc.). Therefore, even if the trademark registration of this case by Nonparty 2 and Nonparty 1 is cancelled due to the execution of the decision after the judgment was rendered final and conclusive in the lawsuit against Nonparty 2 and Nonparty 1 in favor of the plaintiff in the lawsuit against the plaintiff, and the lawsuit against the plaintiff was pending in the Supreme Court, and the decision was executed in accordance with the execution of the lawsuit in this case, the effect does not extend to the defendant, and thus, in relation to the defendant, Nonparty 2

The ground of appeal to this purport is without merit.

2. As to the grounds of appeal Nos. 2 and 3

In light of the records, the registered trademark of this case consists of “” and the trademarks claimed by the Plaintiff as having been used by the trademark right holder, etc. within three years before the date of the instant request for a trial (hereinafter “instant trademarks”) consist of “,” “,” “,” “,” “,” “,” “,” “,” “,” and “ “,” respectively.

The trademarks of this case are added to the registered trademark of this case with the word “instigious”. The added word is smaller than the registered trademark of this case, and is combined to the left-hand side with a certain distance from the upper part of the registered trademark of this case. Among the trademarks in actual use of this case, some of the trademarks of this case, such as the difference between the registered trademark of this case and the color, are deemed to be an additional part of ordinary consumers or traders. Furthermore, the word “instigious” means that the word “instigious is widely known by entering people.” Furthermore, it is merely an additional expression emphasizing the recognition guidance or reputation of the registered trademark of this case, and it cannot be deemed that another new concept is formed as a combination with the registered trademark of this case. Moreover, the word “laver” or “laver” as an additional part of the trademarks in actual use of this case, refers to the designated goods itself, and its distinctiveness is not recognized.

Therefore, since the trademarks in actual use of this case cannot be deemed as a separate mark that is distinguished from the registered trademark of this case to ordinary consumers or traders, the use of the trademarks in actual use of this case constitutes the use of trademarks in a form that can be seen as identical to the registered trademark of this case under the common sense of the trade society.

Nevertheless, the lower court determined that the trademark of this case and the registered trademark of this case are not identical on the ground that the trademark of this case was combined with the trademark of this case with the “instigious” constituted a new concept different from the registered trademark of this case. In so doing, the lower court erred by misapprehending the legal doctrine as to the identity of the trademark, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Conclusion

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 Lee In-bok (Presiding Justice)