[2] The case holding that it cannot be viewed as a legitimate use under Article 73 (4) of the former Trademark Act because it is merely a nominal use to avoid the cancellation of non-use, rather than that on the premise that the registered trademark is distributed through ordinary commercial transactions in the Republic of Korea

[2] The case holding that it cannot be viewed as a legitimate use under Article 73 (4) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) because it was merely a nominal use to avoid the cancellation of non-use, rather than that under the premise that the registered trademark is distributed through ordinary commercial transactions in Korea.

2. Litigation costs shall be borne by the plaintiff.

The following facts can be acknowledged in light of the whole purport of the pleadings in Gap evidence Nos. 1 and 2.

A. Details of the registered trademark of this case

(1) Composition: < Amended by Presidential Decree No. 1357840, Sep. 17, 1994; Presidential Decree No. 135840, Mar. 14, 1997; Presidential Decree No. 13568, Feb. 23, 1998; Presidential Decree No. 1358, Feb. 23, 1998>

B. Defendant’s petition for revocation of registration (2002Da249)

(1) Grounds for claim

The Plaintiff did not use the registered trademark of this case on the designated goods for three or more consecutive years prior to February 7, 2002, which was the date on which the revocation trial was requested by the Plaintiff without any justifiable reason. Therefore, the registration must be revoked pursuant to Article 73(1)3 of the former Trademark Act (amended by Act No. 5355, Aug. 22, 1997; hereinafter the same).

(2) Results of adjudication

On June 27, 2002, the Korean Intellectual Property Tribunal rendered a decision to revoke the registration of the trademark of this case.

(3) Summary of the trial decision of this case

The evidence presented by the Plaintiff alone cannot be recognized that the Plaintiff properly used the registered trademark of this case for the designated goods within three years from the date of the request for the adjudication of this case.

2. Whether the trial decision of this case is legitimate

A. Grounds for revoking the trial decision of the plaintiff's assertion

The plaintiff has used the registered trademark of this case as designated goods, such as uniforms and pumps within three years from the date of the request for the cancellation trial of this case, and the decision of this case must be revoked.

(b) Markets:

(1) Article 73 (1) 3 of the former Trademark Act provides that "any trademark right holder, exclusive or non-exclusive licensee fails to use the registered trademark for at least three consecutive years prior to the filing date of the request for the revocation trial on the designated goods without justifiable grounds," while Article 73 (4) provides that "where a revocation trial is requested on the grounds that it falls under paragraph (1) 3, the respondent shall not be exempted from the revocation of the trademark registration on the designated goods related to the request for the revocation trial unless he/she proves that at least one of the designated goods related to the request for the revocation trial was properly used in the Republic of Korea within three years prior to the filing date of the request for the revocation trial, the trademark right holder shall not be exempted from the revocation of the trademark registration on the designated goods related to the request for the revocation trial, unless he/she proves that the trademark right holder, exclusive or non-exclusive licensee properly uses the registered trademark within three years prior to the filing date of the request for the revocation trial on the designated goods or their packaging requested for the revocation trial.

In addition, the former Trademark Act provides that a trial for revocation of a trademark which has not been used for a certain period of time may only be held in a trade market and play various social and economic functions, so the trademark owner may demand the active use of the registered trademark in the trade market. On the other hand, even if the trademark is not actually used under the Korean Trademark Act, if it is registered, it may be prohibited from using a third party, and if the state of non-use of the registered trademark is indefinitely neglected without any justifiable reason, it may result in a violation of the purpose of the Trademark Act, which is to protect industrial development and consumers' interests, by unfairly restricting the freedom of choice of another person's trademark and fair competition. Therefore, it is interpreted that the trademark which has not been used for a certain period of time without any justifiable reason, is intended to restore

Therefore, in light of such legislative intent, even if a trademark was used as a method of indicating the designated goods, if it is not based on the premise that the designated goods are distributed through ordinary commercial transactions in Korea, but simply if it is displayed on a small quantity of goods to be exempted from the revocation of non-use of the registered trademark, it is merely a nominal use, and it cannot be deemed as a justifiable use under Article 73(4) of the former Trademark Act.

(2) In full view of the purport of the entire arguments in the testimony of the Plaintiff, the Plaintiff requested the Plaintiff to produce 10 to 83,000 won, which is the part of the instant registered trademark or the text thereof, on or around February 9, 2001, after completing the production of 10 to 10 to 10 to 10 to 200 won, and the Plaintiff supplied the instant registered trademark on March 9, 2001, with only the part of the instant registered trademark or the text thereof displayed only the part of the instant registered trademark, and the remaining portion to 1-2 to 1 to 3 to 3 to 3 to 3 to 3 to 3 to 3 to 3 to 2001. Thus, the Plaintiff’s use of the instant registered trademark as the designated goods within the three-year period prior to the date of the Plaintiff’s request for revocation trial.

However, according to Gap evidence No. 2 and Eul evidence No. 1, at the time when the plaintiff requested the production of pointer with which the trademark of this case was attached to Kim Jong-hun as such, the plaintiff was pending in the lawsuit on the claim for the invalidation trial of the registered trademark of this case between the plaintiff and the plaintiff Drur, Spanish Ros, Lives, gameer (hereinafter referred to as "Dar"), and on March 17, 2001, immediately after the plaintiff was supplied with the pointer from Kim Jong-hun, the plaintiff requested the revocation trial of the non-use of the registered trademark of this case from the above Drur on March 17, 201. Since the above facts are extremely limited to the small quantity of the plaintiff's request for production to the above Kim Jong-hun in light of general transaction circumstances, it cannot be said that the plaintiff's non-use of the registered trademark of this case was merely a mere mere 1-2 use of the registered trademark of this case, and it cannot be said that the plaintiff's non-use of the registered trademark of this case was clearly known through the plaintiff's sale of this case.

(3) In addition to the sale after being supplied with the instant registered trademark from Kim Ho-hun, the Plaintiff asserted that the Plaintiff produced and sold to consumers the 10 strawer with the mark of the instant registered trademark on January 19, 201, such as by being supplied ten 10 strawer with the 10 strawer with the mark of the instant registered trademark on January 19, 201 from the middle order to the beginning of April 2001 with the mark of the instant registered trademark on November 1, 1998 and the 8,000 strawer with the mark of the instant registered trademark on sports, but it is insufficient to acknowledge the fact of the Plaintiff’s assertion by only the statement of the evidence No. 3 alone, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion cannot

C. Sub-committee

Therefore, the registered trademark of this case cannot be revoked pursuant to Article 73 (1) 3 of the former Trademark Act, and the decision of this case as the conclusion is just.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges of the Kimchi (Presiding Judge)