[등록취소(상)][공2002.1.15.(146),207]
The case affirming the judgment of the court below which recognized the legitimate use of a trademark as a trademark in relation to the requirements for cancellation of trademark registration due to the non-use of the trademark which infringes another person'
The case affirming the judgment of the court below which held that as long as Gap uses a trademark of actual use within the same category as the registered trademark in a foreign country prior to the date of application for the registration of the registered trademark, and obtained the copyright thereof by creating a figure of almost the same type as the registered trademark in the foreign country, and such a work is retroactively protected in our country pursuant to the Copyright Act amended by Act No. 5015 of December 6, 1995, the judgment of the court below which recognized Eul's fair use of the registered trademark or its associated trademark as "justifiable use of the combined trademark" under Article 73 (4) of the former Trademark Act (amended by Act No. 5355 of August 22, 1997) without the consent, the copyright holder's consent should be obtained.
Articles 53 and 73(1)3 and (4) of the former Trademark Act (Amended by Act No. 5355, Aug. 22, 1997); Article 3(1) of the Copyright Act (Amended by Act No. 5015, Dec. 6, 1995); Articles 1, 3, and 4 of the Addenda (Amended by Act No. 5015, Dec. 6, 1995);
Crococad Entertainment (Patent Attorney Song Jae-soo et al., Counsel for the defendant-appellant)
Cloco-Japanese Sloak Sloak Slorate (Patent Attorney Lee Jin-jin et al., Counsel for defendant-appellant)
Patent Court Decision 98Heo7547 delivered on December 3, 1998
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. According to the reasoning of the judgment below, the defendant, based on the evidence of its employment, established an exclusive license for the non-party as to the above trademark of this case [the application of March 16, 1989, the registration of March 18, 191, the trademark registration number 1 omitted] on 5th of October 1996 and the trademark right of this case (the registration number 2th of April 1994, the trademark registration number 1st of November 4, 1996) on 9th of November 7th of 1996, and completed the registration of the above establishment on 9th of November 7th of 1996, and the defendant was not entitled to the above trademark of this case from 9th of January 1, 197 to 31st of December 1999, and the non-party's trademark of this case, which was identical to the above trademark of this case No. 977th of March 1, 199.
In light of the relevant provisions and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles or omission of judgment as to the legitimate use of trademark under Article 73 (1) 3 and (4) of the former Trademark Act, as otherwise alleged in the ground of appeal.
2. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)