[2] In a case where the trademark registration was not completed at the time of a request for cancellation of the trademark registration, but the period of non-use was completed during the trial or upon a request for a trial, but the period of non-use expires before the closure of the trial due to the failure to use the registered trademark after the request for a trial (negative)

[3] The meaning of "where an owner of a trademark right allows another person to use the trademark" under Article 73 (1) 1 of the former Trademark Act

[2] Article 73 (1) 3 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) applies to cases where a registered trademark has not been used in the Republic of Korea for not less than three consecutive years prior to the date a request for revocation is filed, and where a claimant proves that a registered trademark has been used as designated goods related to the registered trademark within three years prior to the date a request for adjudication is filed, he/she may be exempted from the revocation of the trademark registration (Article 73 (4) of the same Act). In cases where a request for adjudication was not completed in the case of a request for adjudication but the period of non-use has not been completed during the trial of the case of a request for adjudication, or where the period of non-use has not been used after the request for adjudication, but the trademark

[3] "Cases where an owner of a trademark right allows another person to use a trademark" under Article 73 (1) 1 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) refers to cases where the owner of the trademark right allows another person to use the trademark as an active act, and it does not include passive neglect or implied person.

1. On the first ground for appeal

Article 41 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997; hereinafter the same) provides that trademark rights shall take effect by registration of establishment, and Article 56 (1) 1 of the same Act provides that transfer (excluding transfer by inheritance or other general succession) of trademark rights shall not take effect unless they are registered. Thus, a trademark right holder under the Trademark Act shall be deemed to be a person registered as a trademark right holder on the trademark register. If a trademark is transferred, but the transferee who has yet to complete the registration of transfer cannot be deemed to be a trademark right holder, and if the transferor remains as a trademark right holder on the trademark register, the transferor shall still be deemed to be a trademark right holder.

According to the reasoning of the court below's decision, the court below acknowledged that the non-claimed Korea Sccoz corporation, on September 9, 1992, upon Eul's evidence No. 2, had used the registered trademark in Korea within three years before the date of the request for a trial, and determined to the effect that prior to Sep. 22, 1992, CHEKIN DAL PCRS attached the registered trademark in this case to CHEKIN DAL PDR PDR, and that Article 73 (4) of the former Trademark Act provides that one of the registered trademark or the associated trademark of the above registered trademark can be exempted from the revocation of the registration if it was properly used in Korea within three years before the date of the request for a trial. On the other hand, the court below held that the above Korea Sccoz corporation transferred the registered trademark in this case to the non-party, but transferred the registered trademark in this case to the non-party, the corporation prior to Sep. 22, 1992, which is the above non-party's trademark owner of this case.

In light of the records, the above determination by the court below is deemed correct, and there is no error of law by misunderstanding the legal principles as to Article 73(1)3 of the former Trademark Act, contrary to the allegations in the grounds of appeal. The Supreme Court decisions, which are alleged in the grounds of appeal, concerning a matter prior to the enforcement of the Trademark Act, which is applicable to this case, or the matter different from this case, are not appropriate to be invoked. The argument in the grounds

2. On the second ground for appeal

Article 73 (1) 3 of the former Trademark Act applies to cases where a registered trademark is not used in the Republic of Korea for three or more consecutive years prior to the date of a request for revocation of the registered trademark, and if an applicant proves that the registered trademark was used for the designated goods related to the registered trademark within three years prior to the date of the request for adjudication (Article 73 (4) of the same Act), the revocation of the trademark registration may be exempted if he/she proves that the registered trademark was used for the designated goods related to the registered trademark within three years prior to the date of the request for adjudication (see Supreme Court Decision 95Hu651 delivered on December 26, 1995).

In the same purport, since Article 73 (1) 3 of the former Trademark Act provides that "before the date of a request for cancellation" as to the starting point for the period of non-use of a trademark, the court below is justified to determine that the registered trademark cannot be cancelled if the period of non-use has been completed during the trial after the request for a trial, and contrary to the allegations in the grounds of appeal, there is no

3. On the third ground for appeal

According to the reasoning of the decision of the court below, the court below determined that, in full view of Gap evidence Nos. 3 (Co. 4), Gap evidence Nos. 4 (Co. 5) and evidence Nos. 5 (Pl. 5) at the time of use, the trademark of this case was used on goods identical or similar to the designated goods by exclusive or non-exclusive licensee on Sep. 6, 1994 and at Apr. 4, 1995 at the time of use, but it was recognized that the above Korea Slvez Co., Ltd. (the above non-party’s error) which is the trademark owner of the trademark of this case at the time of use was used on goods identical or similar to the trademark of this case for six months or longer on goods identical or similar to the designated goods, since there is no evidence to recognize that the above Korea Slvez Co., Ltd. (the above non-party’s error in the name of the non-party) which is the trademark owner of this case at the time of use.

In light of the records, the above determination by the court below is deemed correct, and there is no error of law such as misunderstanding of legal principles as to Article 73 (1) 1 of the former Trademark Act, contrary to what is alleged in the grounds of appeal.

In addition, "where an owner of a trademark right allows another person to use the trademark" under Article 73 (1) 1 of the former Trademark Act means the case where the owner of the trademark right allows another person to use the trademark as an active act, and it does not include passive neglect or implied person.

The argument in the grounds of appeal cannot be accepted.

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the claimant who has lost. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Cho Cho-Un (Presiding Justice)