2. The costs of lawsuit shall be borne by the Plaintiff.

A. The trademark/service mark of this case

(1) Date of application/registration date/registration number: December 10, 1999/ February 2, 2001/ (registration number omitted)

2) Composition:

3) Designated goods/service business: as shown in the attached Form.

4) Trademark right holder: plaintiff

B. Details of the instant trial decision

1) On May 28, 2009, the Defendant filed for a trial for invalidation of registration (No. 2008DaDa2985) with the Intellectual Property Tribunal on the instant trademark/service mark by asserting that there is a ground for invalidation of registration falling under Articles 6(1)3, 7(1)4, 6, and 11 of the former Trademark Act (amended by Act No. 8190, Jan. 3, 2007; hereinafter the same shall apply), but the Korean Intellectual Property Tribunal rejected the Defendant’s appeal on May 28, 2009 (hereinafter “the first trial decision”).

2) The Defendant dissatisfied with the first trial decision, filed a lawsuit seeking cancellation of the trial decision in the Patent Court (2009No. 5028). On December 30, 2009, the Patent Court rendered a judgment revoking the first trial decision (hereinafter referred to as the “cancellation judgment”) by accepting the Defendant’s claim, on the ground that the trademark/service mark of this case was applied for duplication of the name of White-Nam, which is well-known as video products, without permission, and the registration should be invalidated as it is recognized that there is a ground for invalidation of the registration under Article 7(1)4 of the former Trademark Act. The Patent Court rendered a judgment revoking the first trial decision (hereinafter referred to as “the revocation judgment”). The court determined as follows as to the evidence (hereinafter referred to as the “written evidence display”) as to whether there was the consent of White-Nam in the process of registering the trademark/service mark of this case in the above case.

① The evidence No. 6 was submitted to the Korean Intellectual Property Office at the time of filing the application for the trademark/service mark of this case, and the content stated that “the Plaintiff professor would permit the Plaintiff professor to build the White-Nam Art Gallery in Daegu.” This merely refers to the part concerning the construction of the art gallery that is not related to the application for the trademark of this case, and it cannot be deemed that the Plaintiff consented to the application for the trademark/service mark of this case based on the evidence No. 6.

② The evidence No. 3 states that “A shall permit the Plaintiff to construct the Yannam Art Gallery in Daegu,” and the evidence No. 4 states that “A shall audit the Plaintiff’s professor’s efforts to establish the Yannam Patent Art Gallery in Korea with the help of Nonparty 1, who wants to build the Yannam Art Gallery. 3/28/99”, and the evidence No. 5-1 and No. 5-2, “I will audit the Plaintiff’s establishment of the Yannam Art Gallery in Daegu. The actual affairs will begin on August 2000.” However, the above statements are related to the Yannam Art Gallery as a whole, and it is difficult to deem that the Yannam has consented to the instant trademark/service mark solely on the above entries.”

(3) The Plaintiff asserts that “patent goods” as indicated in the evidence No. 3 means the designated goods/service of the instant trademark/service mark, which is directly indicated by YY, but in light of the fact that the overall entries in the evidence No. 3 through No. 5 are merely understood as having consented to the establishment of an art gallery, and that other matters are not mentioned at all as to “trademarks”, the entry in the part of “patents” cannot be seen as having the same meaning as the designated goods/designated service of the instant trademark/service mark, or as the basis for the consent to the application of the trademark/service mark of this case, the Plaintiff’s assertion is without merit

3) After that, the Plaintiff filed an appeal with the Supreme Court against the above revocation judgment (No. 2010Hu4566). However, the Supreme Court rendered a judgment dismissing the final appeal on July 22, 2010, which became final and conclusive as it is by the Supreme Court, and the Supreme Court determined the Plaintiff’s grounds of final appeal as follows.

① Article 7(1)4 of the former Trademark Act (amended by Act No. 8190, Jan. 3, 2007) applies to the trial and lawsuit on the instant trademark/service mark filed on December 10, 199, prior to the enforcement date of the Trademark Act amended by Act No. 8190, Dec. 10, 199.

② In the process of organizing a committee for the establishment of the “Yunam Art Gallery” in Daegu area around April 1999 and preparing exhibitions to raise the fund from September 199, the Plaintiff’s act of using the trademark/service mark of this case with designated goods and service business as “art gallery business” without permission for the purpose of exclusively using the trademark or service mark containing the name of Yu Nam Nam Nam in terms of the reputation of the name of Yu Nam Nam, and the Plaintiff’s act of using the trademark/service mark of this case without permission for the purpose of impairing the good customs of the general public as well as impairing the reputation of the trademark law, as it is highly likely that the Plaintiff’s act of using the trademark/service mark of this case without permission for the purpose of using the trademark/service mark of this case in order to enhance the reputation of the well-known trademark name of Yunam constitutes an act of using the trademark/service mark of this case without permission for the purpose of impairing the good customs of the general public, and thus, constitutes an act of impairing the reputation of the trademark/service mark of this case.

4) On the grounds delineated above, when the judgment of revocation became final and conclusive, the Korean Intellectual Property Trial and Appeal Board (2010 Party 81) proceeded with the retrial procedure (2010 Party 81) on the above case. On May 20, 2011, after the judgment of revocation became final and conclusive, evidence newly submitted by the Plaintiff alone, is not sufficient to reverse the conclusion of the judgment of revocation as to whether the consent to the application and registration of the trademark/service mark of this case should be reversed, and the trademark/service mark of this case should be invalidated as the basic grounds for the judgment of revocation. Accordingly, the judgment of this case was rendered by the Defendant on the grounds that the registration should be invalidated.

【Ground of recognition】 There is no dispute or significant fact in the court, Gap evidence 1 through 4, Gap evidence 5-1, 2, the purport of the whole pleadings

2. Summary of the parties' arguments;

A. The plaintiff's assertion

① Since the Defendant did not submit evidentiary materials to the effect that it was delegated by the heir or executor of the will to file a petition for a nullification trial of the registration of the trademark or service mark of this case, the instant petition for a trial shall be dismissed as unlawful since it did not make a request by a legitimate interested person.

② The Plaintiff’s consent to the establishment of the instant trademark/service mark is an incidental and complementary act to the extent necessary for the establishment and operation of an art gallery that obtained consent from the Republic of Korea. Thus, it cannot be deemed that the Plaintiff’s registration/service mark intentionally takes advantage of the Plaintiff’s well-known name or imitates another’s mark without permission, or that the registration of the instant trademark/service mark is contrary to the order of the Trademark Act, and thus it cannot be deemed that recognizing the registration of the instant trademark/service mark goes against the order of the Trademark Act, and thus, it does not constitute “the case where the public order or good customs is likely to be injured” under Article 7(1)4 of the former Trademark Act.

(3) In a case where it is at issue as to whether a famous person’s name was used without the consent of the case, Article 7(1)6 of the former Trademark Act should be applied first as a special provision. Article 7(1)4 of the former Trademark Act cannot be applied. Since the exclusion period for filing a trial to invalidate a trademark under Article 7(1)6 of the former Trademark Act has expired among the Plaintiff’s grounds of appeal, applying Article 7(1)4 of the former Trademark Act in this case did not make any decision on the grounds of appeal that the application of Article 7(1)4 of the former Trademark Act goes against the legal principles as to supplement, and thus, the decision of this case had omitted the decision of this case.

④ Considering that White-Nam, who instructed or approved the establishment of an art gallery with his/her name, did not consent to the application and registration of the trademark/service mark of this case, is contrary to the empirical rule and common sense, and it should be interpreted that White-Nam, in the evidence No. 3, permitted the establishment of an art gallery and the development of patent goods to the Plaintiff should be construed as allowing the Plaintiff to designate designated goods or designated services necessary for operating the art gallery at the same time as the construction of the art gallery, but the revocation judgment did not interpret it as above.

⑤ After the examiner of the Korean Intellectual Property Office examined the application for the trademark/service mark of this case according to normal procedure, the trademark/service mark of this case was registered, and thus, it is presumed that there was the consent of 00 South Korea. Furthermore, when the defendant filed for a trial to invalidate the registration of the trademark of this case on the ground that the defendant did not obtain the prior consent of the famous other persons under Article 7(1)6 of the former Trademark Act, the defendant's consent to the application for the trademark/service mark of this case is deemed to have been obtained after the expiration of the limitation period that the defendant could bring for a trial to invalidate the registration of the trademark of this case. Thus, the burden of proving that the defendant did not consent to the application for trademark/service mark of this case on the ground that the trademark/service mark of this case had no prior consent to the application for trademark/service mark of this case is likely to disturb the public order or good morals, the defendant should prove that the trademark/service mark of this case lawfully registered may not be deemed to have violated the public order or good morals.

6. Examining the newly presented evidence or newly presented evidence after the judgment of revocation becomes final and conclusive and the newly presented evidence before the judgment of revocation becomes final and conclusive, the conclusion of the final and conclusive judgment of revocation shall be reversed, on the ground that it is sufficiently recognized that there was the consent of 000 South Korea as to the application and registration of the trademark/service mark

7) Therefore, the instant trial decision that held that the registration of the instant trademark/service mark falls under Article 7(1)4 of the former Trademark Act and ought to be invalidated solely on the ground that the grounds of the revocation judgment ought to be based on the grounds of the revocation judgment is unreasonable

B. Defendant’s assertion

① The Defendant operates an art gallery under the name of “Ynam-do Art Center” before the instant petition for a trial was filed. The Plaintiff operated the art gallery using a trademark similar to the trademark/service mark of this case on several occasions, thereby infringing on its trademark rights, and filed a lawsuit seeking the prohibition of trademark infringement against the Defendant. As such, the Defendant constitutes a legitimate interested party entitled to file the instant petition for a trial.

② Even if all the evidence presented after the final and conclusive judgment was examined, there is no evidence of sufficient probative value to reverse the conclusion of the revocation judgment, and thus, the trademark/service mark of this case should be null and void, and thus, the trial decision of this case consistent with this conclusion is justifiable.

3. Whether the request for adjudication of this case is legitimate as it constitutes a legitimate interested party.

A. Relevant legal principles

An interested party entitled to request a trial to invalidate trademark registration includes a person who sells goods of the same kind as the designated goods of the registered trademark and has a direct interest in the extinguishment of the trademark (see Supreme Court Decision 2003Hu816, Oct. 10, 2003, etc.). Meanwhile, an interested party entitled to request a trial to invalidate trademark registration refers to a person who uses or currently uses a service mark identical or similar to the registered service mark for a designated service business identical or similar to that of the registered service mark, or a person who carries on the same kind of service business as the designated service business of the registered service mark, and thus has a direct interest in the extinguishment of the registered service mark (see Supreme Court Decision 2007Hu3325, May 28, 2009).

In addition, whether it constitutes an interested party as above should be determined at the time of a trial decision (see, e.g., Supreme Court Decision 2007Hu3325, supra).

B. Specific determination

In full view of the purport of the arguments in Eul evidence 12-1, 2, and 3, the defendant, from October 2008 prior to the first trial decision, operated an art gallery under the name of "Ynam-Nam-nam Center". On December 29, 2008, the plaintiff sent a warning note (Evidence 12-1) containing the defendant's refusal to use "management art gallery business" identical to the designated service business of the trademark/service mark of this case (Evidence 12-1) which contains the contents of "YN2" (the plaintiff sent the name of "YN2" to the defendant around April 10, 2009, which contains the same name of "YN2" (the name of "SN2" and the name of "YN2" and the warning of "MN1" as the above warning of "MN2" (the name of "YN2" to the defendant on goods of this case such as the entrance, entrance of the above art gallery, the door, and the card, etc.).

In full view of the facts as seen earlier 1. A., the designated goods of the trademark/service mark of this case were sold in art galleriess, and as of the time of the first trial decision, the Defendant had been contested against the Plaintiff, such as selling art goods and souvenirs, which are the goods of the same kind as the designated goods of this case, and having been demanded to suspend the sale. Moreover, it is sufficient to view that the trademark/service mark of this case had a direct interest in the extinguishment of the trademark/service mark of this case, since the Defendant had been in the state of carrying on the same service business as the designated service business of this case.

Therefore, the Defendant’s petition for a trial on invalidation of the trademark/service mark of this case constitutes a legitimate party’s petition, regardless of whether the Defendant was duly authorized by the heir or executor of White-Nam, and is lawful.

4. Whether the new evidence has sufficient probative value to reverse the conclusion of the revocation judgment;

A. Relevant legal principles

Where a judgment revoking a previous trial decision becomes final and conclusive, the Korean Intellectual Property Tribunal has a duty to re-examine and make a new trial decision in accordance with the purport of the judgment revoking the trial decision. In this case, it is binding on the grounds that serve as the basis for the revocation decision, and thus, it cannot make a new trial decision on the same conclusion as the previous trial decision revoking the trial decision for the same reason as the grounds for the revocation decision rendered by the same reason as the previous trial decision revoking the trial decision. However, a new trial decision may be made on the grounds that new facts and evidence are discovered in the course of retrial, different from the grounds that serve as the basis for the revocation decision, and, in this case, the party against whom the unfavorable trial decision was rendered, may bring a lawsuit seeking revocation again. However, a new trial decision is lawful in principle based on the grounds that form the basis for the revocation decision on the grounds that there are no new arguments and evidence in the process of retrial, and even the party against whom the unfavorable trial decision was rendered, even if so, a new fact or new evidence sufficient to reverse the facts recognized in the judgment revoking or revoke the trial decision.

B. Specific determination

1) The revocation judgment held that the registration of this case should be invalidated on the ground that the trademark/service mark of this case has been copied without the consent of the person concerned, which is well-known as a video list, and the registration of this case should be invalidated on the ground of the invalidation of registration under Article 7 (1) 4 of the former Trademark Act. Thus, it is examined as to the existence of probative value sufficient to reverse the judgment of the previous revocation judgment, among the newly presented evidence and newly presented evidence by the plaintiff after the revocation judgment became final and conclusive and the newly presented evidence by the defendant.

2) Certificates newly submitted by the Plaintiff after the judgment of revocation was rendered

① The evidence No. 1 is irrelevant to whether there was consent to the application and registration of the trademark/service mark of this case, which is the issue of this case, as the trial decision of this case.

② Evidence No. 17-1 is a fact-finding certificate prepared by Nonparty 3, Aug. 19, 2010, and evidence No. 17-2 is a record recording of Nonparty 3’s statement recorded on April 26, 2011, and all these materials made after July 22, 2010, which is the date of the above Supreme Court’s ruling concerning this case, are dependent on the memory that there was a fact that 10 years have elapsed since 9 years before 10 years prior to the date of the application of the trademark/service mark of this case, and further, evidence is not worth evidence proving that there was the consent of 00 South Korea at the time of the filing date of the trademark/service mark of this case. Moreover, as seen below, the whole content of this case is irrelevant to the evidence that there was no consent of 10 years prior to the filing date of the trademark/service mark of this case.

A evidence No. 17-1 was promoted by Nonparty 3’s overall content as the Director General of KBS Daegu for the establishment of PBS art galleries inside the new building of the Daegu General Government. This is only related to the establishment of the PBS art gallery, and there is no direct relation between whether there was the consent of PB Nam regarding the application for the trademark/service mark of this case.

However, in the process of promoting the establishment of the Yannam Art Gallery among the certificates of the above facts, “a trademark obtained by filing an application with the consent of the Yannam” was evaluated, and the part that “A person directly confirms the consent to a patent to the Yan Nam Nam Nam-Nam in order to confirm whether he/she consented to the trademark related to the trademark of the Yan Nam Nam-nam Art Gallery, and he/she was given the answer that he/she delegated the right to a trademark to the Yan Nam-Nam in relation to the trademark of this case.”

However, the above part is not reliable in that it is inconsistent with and consistent with the content of the recording record (No. 17-2) in which Nonparty 3 written a confirmation of facts (No. 15) and Nonparty 3’s statement made on January 3, 2008.

In other words, the facts confirmation of 3 January 3, 2008 (Evidence B No. 15) was submitted by the plaintiff to the defendant, etc. The evidence No. 17-1 of this case does not state the statement that "in order to confirm the consent of the plaintiff's trademark ", in particular, to the defendant's own telephone at the time, it is proved that the defendant has consented to the patent, and the plaintiff was given the answer that he delegated the right to the trademark "..............., the above statement to the plaintiff as to whether the plaintiff consented to the application of the trademark/service mark of this case, which is the most essential part in this case, was stated on the non-party No. 3's non-party No. 2's non-party No. 3's written confirmation on the non-party No. 1's trademark right to the above non-party No. 3's written confirmation on the non-party No. 2's non-party No. 1's written confirmation on the non-party No. 3's original statement was no more important. 3'.8.

(B) Nos. 17-2 of the (B) No. 17-2 is to ask Nonparty 3 the director of the patent law office, to which the Plaintiff Attorney Go Young-young, to re-examine Nonparty 3 with respect to the above fact-finding confirmation (No. 17-1) written out by Nonparty 3, and to record the contents of Nonparty 3’s answer.

Around 2001, Non-Party 3 promoted the construction of the YBS art gallery in part of the newly constructed building at the time of Non-Party 3 serving in the General Department of KBS Daegu. In the event of the construction of the YB art gallery in the office building without permission, it was confirmed by telephone that Non-Party 3 confirmed that Non-Party 1 consented to the construction of the art gallery after the occurrence of a dispute at the later time (see, e.g., evidence 17-2, 1, and 2).

However, the above recording is that the non-party 3's statement, i.e., whether he consented to the patent with respect to the Standnam Art gallery without asking the other party as trademark right. The patent is currently granted with respect to the patent application. Whether it was made with the consent of the party. It is so argued that the statement (see, e.g., evidence No. 17-2 and No. 2) is written, and the plaintiff's "patent" in the above statement part is the same as the "trademark," and the above recording is the same as the "trademark," and the plaintiff asserts that the above recording is the evidence with strong probative value supporting the plaintiff's argument that the Panam consented to the trademark application with respect to the P

However, in light of the following circumstances, it is difficult to view that Nonparty 3 consented to the application of the trademark/service mark of this case as evidence No. 17-2. In other words, Nonparty 3 called “the content confirmed by Nonparty 4 on telephone conversations to Nonparty 3” from the record of the above record, without asking Nonparty 3’s consent to the establishment of the art gallery in light of the following: “The content of Non-Party 3’s questioning to the Papnam in fact,” which is the content of Non-Party 3’s implementation of the art gallery to commemorate the Papnam in Korea to “the contents of Non-Party 3’s reply to the patent of this case, is the content of Non-Party 3’s reply.” In the above record, it seems to have confirmed whether Non-Party 4 consented to the establishment of the Papnaman Art gallery. The content of Non-Party 3’s reply to Non-Party 1’s trademark right is the content of Non-Party 3’s reply to the Patent.”

③ No. 18 of the Plaintiff’s No. 18 is only the front photo of the board, which was submitted by means of writing and writing writing to be used in the Plaintiff’s art gallery. Thus, regardless of whether it is evidence to deem that it was a consent to the establishment of an art gallery using his/her name, it is insufficient to see that the application for trademark/service mark of this case was not directly related to the application for trademark/service mark of this case, and that there was a consent of 0000 South Korea to the application for trademark/service mark of this case.

④ The evidence No. 19 is merely a written statement of the Plaintiff himself/herself, and it is nothing more than a different form of Plaintiff’s assertion. Therefore, it cannot be an objective evidence proving that there was the consent of 00 South Korea in the process of filing and registering the instant trademark/service mark.

⑤ 갑 제20호증은 송기창 작성의 진술서로 백남준과 원고 사이에 상당한 유대관계가 있었다는 내용이고, 갑 제22호증은 원고의 인터뷰를 기록한 기사로서, 위 진술서 및 기사 어디에도 이 사건 상표/서비스표의 출원 및 등록에 관한 내용은 기재되어 있지 아니하므로 위 진술서 및 기사도 이 사건 상표/서비스표의 출원·등록에 관한 백남준의 동의와는 무관하다(원고는 갑 제21호증도 새로운 증거로 제출하고 있으나, 갑 제21호증은 백남준의 조카인 소외 5의 진술서로서, 오히려 소외 5는 그 진술서에서 자신이 백남준으로부터 한국의 상표출원에 대하여 들은 적이 없고, 백남준은 상표출원을 하지 않고도 당연히 자신의 이름을 가지고 예술활동을 하든지 미술관을 열든지 할 수 있어 상표출원을 할 이유가 없었기 때문에 원고가 한국에서 ‘백남준’이라는 이름의 상표를 출원하는 것에 동의했을 것으로 생각하지는 않으며, 백남준은 원고가 자신의 이름을 이용하여 모금을 한다고 매우 언짢아하기도 했다고 기재하고 있어 원고에게 불리한 내용을 담고 있다.).

【No. 23 No. 23 of the broadcast program’s No. 24-1, 2, and 3 are each news report articles containing a broadcast program containing a misleading expression of “application for trademark registration” as “patent application,” and the Plaintiff asserts that “patent goods” as stated in the evidence No. 3 of the same paragraph means the goods bearing a trademark, since the general public with insufficient legal knowledge uses the term “patent” instead of the term “trademark” without accurately understanding the meaning of the patent and trademark as seen above.

However, the Plaintiff’s above assertion is not only the assertion rejected in the revocation judgment as seen above “1. 2(3)” but also it cannot be readily concluded that there is a confusion between the term “patent and patent,” and the term “patent,” and the term “patent,” as stated in the evidence No. 3 by combining the word “A” with the word “patent and patent,” and ultimately, the Plaintiff’s assertion is irrelevant to whether or not there was the consent of 0-Nam-Nam-do as to the application and registration of the trademark/service mark in this case.

7) The evidence No. 25-1, No. 25-2 is an article related to “design Patent,” and the evidence No. 26-1, and No. 26-2 is an internal official document of the Daegu General of the Republic of Korea with respect to the modification of design to the applicant company, and all of them are unrelated directly to the consent of 00 South Korea with respect to the application and registration of the trademark/service mark of this case.

8) Evidence No. 27 No. 27 is extracted from part of Nonparty 2’s “B’s love, White-Nam,” who is the wife of White-Nam, and evidence No. 28 is a facsimile that Nonparty 2 sent to the Plaintiff. The above evidence is aimed at impeachmenting the credibility of Nonparty 2’s statement. All of the above evidence is not directly related to Nonparty 2’s consent on the application and registration of the trademark/service mark of this case.

9. The evidence No. 29-1 and No. 2 are newly submitted in the upper part of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of

(10) No. 30-1 and No. 2 of the evidence No. 30-1 and No. 30-1 of the evidence No. 30 are the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints of the joints

1) The evidence No. 31-1, No. 31-2, “A” means documents, etc. concerning the domain name in which the name or part of the domain name was used, and it is possible to register the domain name for a long time without the consent of White-do, and therefore, it cannot be evidence to support the consent of White-Nam regarding the application and registration of the trademark/service mark of this case.

(12) The evidence No. 32-1 through 10 of the Plaintiff’s evidence No. 32 is the Design Gazette and the relevant application for the design registration regarding the design right that was filed and registered by the Plaintiff. The evidence No. 33-1 and No. 2 of the Plaintiff’s registration certificate concerning the art work that the Plaintiff registered. The above registration of each design right and copyrighted work also can be registered for a long time without the consent of 00 South and North Korea. Thus, there is no evidence to prove the consent of 00 South and North Korea regarding the application

(13) The evidence No. 34-1 and No. 34-2 of the plaintiff's evidence No. 34-1 and No. 34-1 of the plaintiff's meeting minutes of "the Committee for Promotion of the Establishment of the Y Namnam Art Gallery", which were the chairperson of the plaintiff, contain the contents of the meeting on the registration of the domain name No. 34-1 of the certificate No. 34-2 of the certificate No. 34, and the evidence No. 34-2 of the certificate No. 34-2 of the plaintiff stated that "the anticipated of patent registration is scheduled from 150-2 million won after confirmation of the item for export to 150-2 million won" as the plaintiff's statement and public notice that "the plaintiff (the chairperson of the Promotion Committee) will return to Korea in August of the scheduled date of departure of 7/15 U.S.", and there is no indication that the plaintiff's consent on the application and registration of the trademark/service mark

(14) The evidence No. 35 was newly submitted to the effect that the number of the plaintiff as stated in the upper part of the upper part of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body.

(15) The evidence No. 36 is Nonparty 6’s confirmation document and the evidence No. 37 is Nonparty 7’s confirmation document, and is related to the efforts to resolve disputes between the Plaintiff and the Defendant regarding the trademark/service mark of this case. The evidence No. 38 is a written request for confirmation of confirmation that the Plaintiff requested the Nonparty 8 Law Firm, who represented the Plaintiff for the application of the trademark/service mark of this case, to verify the situation at the time of the application, and all of them are not evidence supporting the consent of 00 South-Nam regarding the application of the trademark/service mark of this case.

4) Certification of a newly examined evidence after the revocation judgment.

① Nonparty 3’s testimony

In light of the following, it is difficult to view that Nonparty 3’s testimony by the witness has probative value to the extent sufficient to reverse the judgment prior to the revocation judgment on whether it agreed to the Plaintiff’s trademark/service mark application and registration of this case.

In other words, it is important for Nonparty 3 to give testimony at the time of the expiration of at least 10 years from the date when Nonparty 3 used words or terms while Nonparty 3 in the currency of White Nam, and it is difficult for Nonparty 3 to accurately memory it until now. Nonparty 3, who was a witness of the Republic of Korea (hereinafter “SBS witness”) testified to the effect that “I would like to confirm that I would have been able to have a back-to-date as a responsible person if I would leave the art gallery at the time, so I would be able to deny the back-to-date, and that I would like to promote the establishment of the YB art gallery with the Plaintiff’s consent.” The witness testimony to the effect that “I would have agreed to the establishment of the YBS art gallery with the Plaintiff’s consent to the trademark/service mark application of this case,” and that Non-Party 3 would not have given consent to the patent application of this case “I would have to give consent to the Plaintiff’s reply to the patent application of the YBS.”

② Nonparty 9’s testimony

The testimony of Nonparty 9, who is an employee of the law office in charge of the application of the trademark/service mark of this case, is not supported by the following circumstances that 00 South-Nam consented to the application of the trademark/service mark of this case.

즉, ㉠ 증인 소외 9는 대부분의 신문사항에 대하여 정확하게 기억나지 않는다는 취지로 증언을 하고 있고, 일부 답변한 사항에 대해서도 그럴 것 같지만 정확한 것은 아니라는 취지로 증언하고 있어서 결국 증인 소외 9의 증언은 추측에 근거한 것이 대부분이라는 점에서 신빙성이 현저히 떨어진다. ㉡ 증인 소외 9는 백남준과 이 사건 상표/서비스표 출원에 대한 백남준의 동의 여부에 관하여 직접 통화한 적이 없고, “법원에 오기 전에 소외 10 변호사와 이야기를 했습니다만 상표와 관련해서 기억나는 것이 없고 백남준과 직접 전화한 적은 없다고 말했습니다.”라고 증언하고 있어서 증인 소외 9는 이 사건 상표/서비스표의 출원에 관하여 백남준과 직접 접촉하거나 연락한 적이 없음이 인정된다[원고는 을 제1호증의 3( 소외 11에 대한 진술조서)의 기재 중 ‘ 소외 10 변호사가 특허출원을 원고에게 조언했고, 또 특허출원을 주도하였다.’는 내용 부분을 근거로 소외 10 변호사가 증인 소외 9에게 하였다는 위와 같은 진술 부분의 신빙성을 탄핵하고 있으나, 을 제1호증의 3의 위 부분 기재 내용과 소외 10 변호사가 증인 소외 9에게 하였다는 위와 같은 진술 부분이 모순된다고는 할 수 없을 뿐만 아니라, 을 제1호증의 3의 위 부분 기재 내용을 그대로 믿는다 하더라도 이 사건 상표/서비스표 출원·등록에 대하여 백남준의 동의가 있었음을 뒷받침하는 증거는 될 수 없다.]. ㉢ 더구나 증인 소외 9의 증언은 이 사건 상표/서비스표의 실제 출원경위와도 배치된다. 증인 소외 9가 기억나는 범위 내에서 증언하고 있는 출원경위는 원고로부터 갑 제6호증을 받은 이후에 특허청으로부터 이것만으로는 부족하다는 의견을 들어서 원고에게 재차 요청하여 갑 제3호증을 받은 것 같다는 것인데, 이 사건 상표/서비스표 출원에 대한 심사를 담당하였던 특허청 소외 12 심사관은 동의서(갑 제6호증)가 들어와서 이것으로 보정을 요구할 필요가 없다고 보고 원고에게 추가 보정요청을 하지 않았다고 진술하고 있다(을 제1호증의 8, 제389면). ㉣ 나아가 증인 소외 9가 만약 특허청으로부터 보정요청을 받았기 때문에 원고로부터 갑 제3호증을 받았다면 이를 특허청에 제출하지 않았을 이유가 전혀 없는데도 갑 제3호증이 특허청에 제출되지 않은 점에서도 증인 소외 9의 위와 같은 증언은 신빙성이 떨어진다.

③ The party principal examination of the Plaintiff

In light of the following, it is difficult to believe the result of the party's personal examination against the plaintiff.

즉, ㉠ 원고가 당사자본인신문을 통해 진술한 내용은 이 사건 상표/서비스표에 관한 소송에서 원고가 작성한 진술서(갑 제19호증)나 준비서면을 통해 주장해 왔던 것들에 불과하다. ㉡ 원고는 이 사건 상표/서비스표를 출원한 것은 어디까지나 백남준의 제의에 의한 것이었고(당사자신문조서 제1면의 원고 대리인 신문사항 제1항에 대한 답변 참조), 더욱이 백남준이 나서서 대한민국에서의 상표출원절차를 알아보고 원고에게 이를 알려주었다고 주장하고 있다(당사자신문조서 제1-2면의 원고 대리인 신문사항 제2항에 대한 답변 참조). 그러나 원고에 대한 사기 피의사건 경찰조사에서 참고인 소외 11은 “전시회가 1999. 9. 21.경에 있었는데 그 이전에 원고가 백남준 부인으로부터 미술관건립관련 후원모금을 중단하라는 항의 전화를 받고 저에게 고민을 털어놓기도 했다. 그리고 경기도에서 전화가 와서 자신들이 백남준 미술관을 건립하겠다고 한다며 중단하라는 항의전화가 오는 것을 보았다. 그 후 원고가 변호사에게 상담을 하였다며 저를 찾아와서 특허청에 특허출원을 해 두었다며 세계적으로 아무도 원고 외에는 미술관을 건립할 수 없다고 했다.”는 내용으로 진술하고 있을 뿐만 아니라(을 제1호증의 3, 제267면 참조), 원고가 위원장으로 있던 백남준 미술관 건립 추진위원회 회의록(갑 제34호증의 2)에 의하면 원고가 1999. 7. 6. 개최된 위 위원회 회의에서 ‘현대미술관측에서 등록할 우려가 있고 그 발생시 백 미술관 진행에 차질 예상되며, 이의 방지를 위해 갤러리와 그 상품에 대한 특허 취득 필요하다.’는 취지로 발언한 사실이 인정되는데, 이러한 발언내용은 당시 현대미술관에서 상표를 출원할 우려가 발생되었으며 만약 현대미술관이 먼저 상표를 출원하면 미술관 진행에 차질이 예상된다며 이를 방지하기 위해 먼저 상표를 취득해야 한다는 것이므로, 이에 의하면 백남준이 요청하여 부득이 이 사건 상표/서비스표를 출원한 것이라는 원고의 주장과 달리 오히려 원고는 백남준미술관 건립과 관련한 경쟁 속에서 미리 ‘백남준’ 성명에 대한 권리를 선점하기 위하여 이 사건 상표/서비스표를 출원을 한 것이라고 볼 여지가 충분히 있다. ㉢ 원고의 주장처럼 백남준이 먼저 대한민국에서의 상표출원절차를 알아보고 원고에게 이를 알려주었고 원고가 상표출원을 준비할 때 대리인으로부터 동의서를 내야 한다는 안내를 받았다면(당사자신문조서 제1-2면의 원고 대리인 신문사항 제2항 및 5항에 대한 답변 참조), 백남준이 수기로 원고에게 작성해 준 메모(갑 제3, 6호증)에 명확하게 ‘상표출원에 동의한다.’는 내용이 기재되었을 것인데 위 메모에는 그러한 표현이 없다. ㉣ 백남준이 자필서명한 경기도와 백남준 사이의 2002. 6. 18.자 백남준미술관 건립에 관한 양해각서(을 제6호증의 2)에는 ‘백남준미술관은 「백남준」이라는 명칭을 가진 세계 최초의 유일한 미술관임을 확인한다.’는 내용이 포함되어 있는데, 백남준이 이 사건 상표/서비스표의 출원에 동의하였다면 그 결과 경기도는 상표권자인 원고의 동의 없이는 ‘백남준미술관’이라는 명칭을 사용할 수 없게 될 것인데도 백남준이 위와 같은 내용을 양해각서에 포함시키는 데에 동의를 하였다는 것은 백남준이 이 사건 상표/서비스표의 출원에 동의를 한 적이 없다는 점을 시사한다. ㉤ 원고는 위와 같은 내용이 위 양해각서에 포함된 경위에 대하여 백남준은 경기도 등과 미술관건립에 관하여 양해각서를 체결한 뒤 자신이 요구하면 원고가 경기도 등에서 이 사건 상표/서비스표를 사용하는 데에 무조건 동의할 것이라고 예상하고 위와 같은 내용이 기재된 양해각서에 서명하였을 것이라고 생각한다고 진술하고 있다(당사자신문조서 제18면의 주심판사 신문사항 제7항에 대한 답변 참조). 그러나 백남준이 이 사건 상표/서비스표가 이미 출원되어 등록된 사실을 알면서도 위와 같은 내용이 포함된 양해각서를 체결하려고 하였다면 경험칙상 사전에 상표권자인 원고와 협의를 함이 당연하다 할 것임에도 원고는 백남준과 생전에 피고가 이 사건 상표/서비스표를 사용하는 것에 대하여 협의를 한 바가 없고(당사자신문조서 제10면의 피고 대리인 신문사항 제5항에 대한 답변 참조), 백남준이 피고의 백남준미술관 건립 추진과 관련하여 원고에게 도움을 요청한 일은 없고 여러 가지 말씀은 하셨다(당사자신문조서 제14면의 피고 대리인 신문사항 제22항에 대한 답변 참조)고 진술하고 있어 원고의 위와 같은 진술은 신빙성이 박약하다.

4) Evidence presented by the Defendant after the judgment of revocation that the Plaintiff uses as the benefit of the Plaintiff

① The evidence No. 15 is a factual confirmation of Nonparty 3’s written confirmation on January 3, 2008, and its overall content is related to the establishment of the Y Daegu National Office building in the KS Daegu National Office. As to the trademark/service mark application and registration of this case, it is only stated that “patents acquired under the consent of Belgium” were verified, and it is insufficient to support the application of the trademark/service mark application of this case.

② The evidence No. 16 was submitted to the Patent Court before the plaintiff was declared to revoke the judgment. The evidence No. 17 was submitted to the Supreme Court while the plaintiff filed an appeal against the revocation judgment. Thus, all of the above evidence are merely a document containing the plaintiff's argument and there is no evidence as evidence on the issue of this case.

(v)other evidence.

In addition, there is a result of a fact-finding on the head of the Daejeon Immigration Office of this Court and the Governor of the Gyeonggi-do after the judgment of revocation, which is related to the process of consultation on the establishment of the White Art Gallery between Gyeonggi-do and Y Nam-do, and thus, it is irrelevant to the consent of 00 South Korea on the application of the trademark/service mark

C. Sub-committee

As seen above, the newly presented evidence by the Plaintiff after the revocation judgment cannot be deemed as having sufficient probative value to reverse the judgment that the Plaintiff applied for the trademark or service mark of this case without the Plaintiff’s consent, which is the conclusion of the previous revocation judgment, by imitateing the name of Ynam, which became final and conclusive. In light of the degree of credibility and value of each new evidence as seen above, it is difficult to view otherwise even if all of such evidence are considered in light of the following: (a) other evidence with probative value to the extent sufficient to reverse the above conclusion of the revocation judgment which became final and conclusive, even if sufficiently examining the record, is not found.

5. Judgment on the remainder of the Plaintiff’s assertion

A. As seen in Article 7 (1) 4 of the former Trademark Act (amended by Act No. 721, Mar. 1, 2011; Act No. 718, Jan. 21, 2011; Act No. 718, Jan. 21, 2011; Act No. 7779, Feb. 22, 2011; Act No. 7779, Feb. 31, 201; Act No. 7779, Feb. 29, 201; Act No. 7779, Feb. 31, 2011; and Act No. 7779, Feb. 22, 2011; Act No. 7777, Feb. 3, 201

B. Of the above 2-A, the Plaintiff’s assertion No. 4 among the above 2-A, and the above assertion purported to erroneously interpret the evidence No. 3 in the revocation judgment, and thus, it cannot be accepted as it goes against the binding force of the final and conclusive revocation judgment.

C. As seen in the above 2-A of the above 2-A, as seen in the above 2-A of the Plaintiff’s assertion five, the above 1.b. (2) and 1.b. (3), the revocation judgment and the Supreme Court’s decision recognize that the Plaintiff applied for and registered the trademark/service mark of this case without the consent of 0.0, and that the Defendant had already proved that the application of the trademark/service mark of this case had already been approved without the consent of 0.0,000. Thus, the above assertion by the Defendant that the Defendant failed to bear the above burden of proof cannot be accepted.

6. Conclusion

Therefore, the trial decision of this case, which held that the registration of the trademark/service mark of this case should be invalidated is just, and the plaintiff's claim seeking its revocation is justified, and it is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judge Poscop (Presiding Judge) Poscop Posction