[상표등록취소등][공1994.2.15.(962),541]
Where a trial is requested to revoke the registration of a trademark due to the non-use of a trademark on several designated goods, and the use of one of the designated goods is verified, the method of adjudication.
In light of the provisions of Article 73(1)3, (3), and (4) of the Trademark Act, where a request for cancellation of trademark registration is made with respect to several designated goods at the same time, the designated goods subject to a request for a trial shall be considered as an indivisible one and the use of one of the designated goods shall be proved to be one request, and the request for a trial shall not be accepted as a whole. The request for a trial shall be dismissed only for the designated goods verified and shall not be accepted
Article 73(1)3, (3), and (4) of the Trademark Act
Daesung Co., Ltd., Counsel for the defendant-appellant-appellee and four others
가부시키 가이샤 구몬 교오이쿠 켄큐우카이 소송대리인 변리사 차윤근 외 인
KIPO 141 141,142(Consolidated), 143(Consolidated) and 144(Consolidated Judgment) dated March 31, 1993
The appeal is dismissed.
The costs of appeal shall be borne by a claimant.
We examine the grounds of appeal.
Under the evidence No. 1 of the original adjudication, the advertisement of the registered trademark, etc. on October 28, 1990 and the daily newspaper No. 31 of the same month, which was published on October 28 and 31 of the same month, and the advertisement is indicated in detail as to the indication and quality of books, designated goods, and the registered trademark, etc., so it can be seen that the registered trademark, etc. is used for business purposes within three years prior to the date of the request for revocation of the trademark registration, since it is obvious that it was used in Korea as a substantial and commercial advertisement for the purpose of selling the trademark to general consumers, not just a nominal advertisement to avoid the revocation of the trademark registration, and the registered trademark, etc. is used for the purpose of business purposes. In light of the records, the above fact-finding and judgment of the original decision are justified, and there is no error of law as to legal principles
Article 73 (1) 3 of the Trademark Act provides that a trial on revocation of a trademark registration may be requested on the ground that the registered trademark has not been used in the Republic of Korea for not less than three years, and Article 73 (3) provides that a trial on revocation of a trademark may be requested on some designated goods if there are not less than two designated goods of the registered trademark in the case of paragraph (3). On the other hand, where a trial on revocation of a trademark is requested on the ground that the registered trademark has not been used for not less than three years in the case of paragraph (4), the trademark right holder shall not be exempted from the revocation of the trademark registration on the designated goods related to the request for revocation unless the respondent proves that not less than one of the designated goods related to the request for a trial is properly used in the Republic of Korea within three years before the date of the request for a trial. In light of such provision, where a trial is requested on several designated goods at the same time, the designated goods subject to the request for a trial shall be considered as an indivisible one, and the request for the trial may not be accepted as a whole.
In the above purport, it is proper that the original trial decision was judged that all the revocation trial on the designated goods of the registered trademark in this case is groundless, and there is no error of law such as misunderstanding of legal principles or incomplete hearing.
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 Chocheon-sik (Presiding Justice)