[등록취소(상)][미간행]
[1] In a case where a trial on cancellation of trademark registration is requested for several designated goods, whether all of the designated goods related to a request for revocation of trademark registration should have an interest (negative), and whether the same legal principle applies likewise to service marks (affirmative)
[2] In a case where Gap corporation filed a claim for the revocation of registration against Eul corporation, the right holder of the registered service mark " " "," on the ground that the registered service mark was not properly used within 3 years for the 135 designated service businesses of the registered service mark, such as "family service business, wedding business," etc., among the 135 designated service businesses of the registered service mark, the case affirming the judgment below which held that Gap corporation constituted a person who has an interest in the designated goods related to the request for revocation since it had been engaged in the "patriarche business"
[1] Articles 2(3) and 73(1)3, (3), and (4) of the Trademark Act / [2] Articles 2(3) and 73(1)3, (3), and (4) of the Trademark Act
[1] Supreme Court Decision 2011Hu2916 Decided January 27, 2012
3. A person who holds the right to demand the transfer of the right to demand the transfer of the right to demand transfer
Hague Lease Co., Ltd. (Patent Attorney Jeon-soo et al., Counsel for the defendant-appellant)
Patent Court Decision 2012Heo6274 Decided September 28, 2012
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
On the grounds of a written judgment, a judgment on a party’s assertion and other means of offence and defense shall be indicated to the extent that it can be recognized that the text is fair, and there is no need to determine all allegations by the parties or methods of offence and defense (Article 208 of the Civil Procedure Act).
The court below did not clearly decide on the plaintiff's assertion that "the decision that the defendant constitutes an interested party entitled to file a petition for a trial to revoke the registration of a service mark," even though the court below did not clearly decide on the plaintiff's assertion that "the defendant is unfair, since it was engaged in the designated service of this case "" (service mark registration No. 174957) before the trial to revoke the registration of this case, it constitutes an interested party entitled to file a petition for a trial to revoke the registration of a service mark, so the plaintiff's propriety of the plaintiff's above assertion constitutes an interested party entitled to file a petition for a trial to revoke the registration of a service mark, since it did not affect the conclusion of the judgment that the defendant's above assertion constitutes an interested party entitled to file a petition for a trial to revoke the registration of a service mark." Thus, the court below did not err by omitting judgment as alleged in the ground for appeal.
2. Regarding ground of appeal No. 2
In light of the provisions of Article 73(1)3, (3), and (4) of the Trademark Act, a claimant may request a trial to revoke trademark registration by arbitrarily determining whether the scope of the designated goods to be revoked is all or part of the designated goods. At the same time, where a trial to revoke trademark registration is requested with respect to several designated goods, the designated goods subject to a request for a trial shall be treated as an indivisible one, and where the use of any of the designated goods is verified as a whole as a claim, the request for a trial shall not be accepted as a whole, and the use shall not be dismissed as a whole, and the remainder shall not be accepted (see, e.g., Supreme Court Decision 201Hu2916, Jan. 27, 2012). The interest in a request for a trial to revoke trademark registration shall be sufficient if there is any one of the designated goods related to a request for cancellation, and there is no need to have all interests in the designated goods related to a request for a trial to revoke trademark registration. This legal doctrine likewise applies to service marks under Article 2(3)
According to the reasoning of the judgment below, in the case of this case where the cancellation trial on the registration of a service mark on 63 designated service businesses, including “family service business and wedding business,” among the 135 designated service businesses of the registered service mark of this case, was brought before the request for the cancellation trial, the court below determined that the defendant constitutes a person who has a direct and practical interest in the extinguishment of the registered service mark as to the designated goods related to the request for cancellation trial.
In light of the above legal principles and records, the above judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to interested parties in a request for cancellation of trademark registration.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee In-bok (Presiding Justice)