[상표등록취소][공1992.2.1.(913),519]
The case holding that the trademark registration cannot be viewed as a ground for cancellation of trademark registration under Article 45 (1) 1 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) where the transferee corporation uses the trademark in advance in the process of transferring the trademark right to a corporation established by the trademark owner as his representative and taking the procedure for transfer registration.
The purpose of Article 45 (1) 1 and 5 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990) is to protect consumers' interests by preventing consumers from being confused with the quality of goods by neglecting the duty of supervision over the use of the trademark by a third party without any justifiable reason. Thus, in the process of taking procedures for the transfer registration registration of a trademark right by transferring the trademark right of the registered trademark used under his/her trade name as a "computer information company" to a juristic person of the same trade name that he/she has established as his/her representative within one year after transferring the trademark right to a juristic person of the same trade name that he/she had established as his/her representative, it cannot be deemed that the case where the transferee juristic person uses the trademark in advance prior to the transfer registration constitutes grounds for cancellation of trademark
Article 45 (1) 1 and 5 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)
[Plaintiff-Appellant] 90Hu2041 decided Jun. 25, 1991 (Gong1991, 2037)
h. D. Domcom Rocop Roco Ltd., Attorneys Choi Hyeong-gu, Counsel for the plaintiff-appellant-appellant-appellant
Patent Attorney Lee Jae-ok, Counsel for the defendant-appellant
Korean Intellectual Property Office Decision 443 dated March 12, 1991
The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Office Appeal Trial Office.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the court below
A. The registered trademark of this case is confirmed to have been transferred on June 14, 1989 by transferring it to the above company on June 18, 1989 while the ground interference as a natural person registered a trademark on January 14, 1987 by using magazines, etc. as designated goods and used as a computer information company (personal trade name). Since the company requested for a trial has continued to use the registered trademark of this case until the transfer is made after the transfer of the registered trademark of this case, the trademark right holder permits the use of a trademark identical or similar to the registered trademark of this case on goods identical or similar to the designated goods by others (the whole amendment by Act No. 4201 of Jan. 13, 1990) and it constitutes a ground for cancellation of the registered trademark under Article 45 (1) 1 of the former Trademark Act (wholly amended by Act No. 4201 of Jan. 13, 190).
B. On the ground that there is no confusion between the owner of the trademark of this case and the representative director of the computer intelligence company of this case on the ground that he is the same person, and that this does not fall under the cause of revocation of trademark registration on the ground that he is not used by another person, the natural person and the corporation are different from the other person.
2. Article 45(1)5 of the former Trademark Act provides that trademark registration shall be revoked by a trial only when a trademark right is not applied for registration of transfer within one year from the date of transfer where the trademark right is transferred. Meanwhile, the purport of Article 45(1)5 of the former Trademark Act provides that trademark registration shall be revoked in cases where a trademark right holder silents or allows another person to use a trademark identical with or similar to his/her registered trademark for the goods identical with or similar to the designated goods, and that trademark registration shall be revoked by neglecting the duty of supervision over the use of the trademark by a third party without any justifiable reason, thereby preventing general consumers from being confused with the quality of the goods.
Therefore, in this case, in the process of establishing a legal entity of the same trade name while using the registered trademark in the name of "computer information company", which is his personal trade name, and transferring the trademark right to the respondent company whose representative was made, and lawfully taking the procedure for the registration transfer of the trademark right within one year, the respondent company, who was the transferee, does not immediately mean that the case where the trademark is used in advance prior to the registration transfer, and it does not constitute the ground for cancellation of the trademark registration as provided in subparagraph 1 of the above Article (see Supreme Court Decision 90Hu2041 delivered on June 25, 191).
3. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the grounds for cancellation of trademark registration under Article 45 (1) 1 of the former Trademark Act, and there is a ground to point out this point.
Therefore, the original decision shall be reversed, and the case shall be remanded to the Appellate Trial Office. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-chul (Presiding Justice)