[등록무효(상)][공2014상,633]
In a case where the German company Gap filed a petition for trial to invalidate trademark registration against the trademark right holder Eul corporation of the registered trademark " " " on the ground that the registered trademark falls under Article 7 (1) 12 of the Trademark Act, the case holding that the judgment of the court below which held otherwise erroneous in the misapprehension of legal principles since it was recognized as the trademark of a specific person among German consumers at the time of the filing date of the registered trademark.
In case where the German company Gap filed a petition for trial to invalidate trademark registration against the company Eul, a trademark right holder of the registered trademark "," on the ground that the registered trademark falls under Article 7 (1) 12 of the Trademark Act, the case holding that the judgment below erred in the misapprehension of legal principles in light of the following factors: (a) the process and period of use of the pre-use trademarks "," relation to the products using the pre-use trademarks and the pre-use trademarks; (b) the sales and supply place of the products using the pre-use trademarks; and (c) evaluation in its surrounding areas; and (c) the pre-use trademarks are recognized as a trademark for a specific person among the German consumers at least at least at the time of
Article 7 (1) 12 of the Trademark Act
Point text M&N (Patent Attorney Jeong Young-young, Counsel for the defendant-appellant)
Gangnam Distribution Co., Ltd. (Patent Attorney Ba-han, Counsel for defendant-appellant)
Patent Court Decision 2013Heo5186 decided September 13, 2013
The judgment below is reversed, and the case is remanded to the Patent Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. In order for a registered trademark to fall under Article 7(1)12 of the Trademark Act, the pre-use trademark, compared with the registered trademark, should be recognized as a trademark of a specific person between domestic or foreign consumers at the time of the application, and the applicant for the registered trademark should use the trademark identical or similar to the pre-use trademark for unlawful purposes. Here, whether the pre-use trademark is recognized as a trademark of a specific person between domestic or foreign consumers ought to be determined based on the period of use, method, mode, scope of use, etc. of the trademark, or whether it was objectively and objectively known to the general public (see Supreme Court Decision 2012Hu672, Jun. 28, 201
2. We examine the above legal principles and records.
A person shall be appointed.
According to the reasoning of the judgment below and the record, the pre-use trademarks, as shown below, began to be used for the Plaintiff's high quality handcilty, combining historical aircraft-related design from around 1997 and the highest level of operation equipment, from 300 to 300 to 1950 to 30, the pre-use trademarks, as well as 300 to 300 to 1950 to 200 to 30, the products used by the pre-use trademarks, as well as the pre-use trademarks, were sold from the German airline 200 to 9 to 00 to 200 to 200 to 206 to 200 to 200 to 200 to 200 to 30 to 70 to 70 to 196 to 200 to 200 to 20 to 20 to 20 to 0 to 300 to 50 to 2010 to 2010 to .
Therefore, even if the sales revenue of the products used by the pre-use trademarks during the annual sales from 2007 to 2009 was not specified and there was no evidence to accurately verify the market share or advertising expenses of the visual products used by the pre-use trademarks in Germany, the pre-use trademarks in light of the following factors: (a) details and period of use of the pre-use trademarks; (b) relation between the pre-use trademarks and products using the trademark; (c) sales and supply place of the products used by the pre-use trademarks; and (d) evaluation around April 25, 2010, the pre-use trademarks recognized the designated goods as trademark of the registered trademark “(trademark number omitted)” (hereinafter “the registered trademark number”).
Nevertheless, the court below held that the registered trademark of this case does not fall under Article 7 (1) 12 of the Trademark Act without examining the remaining requirements, on the premise that the pre-use trademarks cannot be deemed to have been recognized as a trademark of a specific person among foreign consumers, including Germany, prior to the filing date of the registered trademark of this case. The court below erred by misapprehending the legal principles on "a trademark recognized as indicating the goods of a specific person by domestic or foreign consumers" under Article 7 (1) 12 of the Trademark Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds of appeal pointing this out
3. 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 Min Il-young (Presiding Justice)