B. Nature of the act of establishing and registering the right to use a trademark under the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (=a quasi-legal act of administrative act)

(c) Whether a trademark right holder may request the revocation of a registration disposition through an administrative litigation procedure where the registration application with a reason for rejection has been accepted and the establishment of a trademark right has been registered (negative);

B. In full view of the provisions of Article 29(1) and (3), Article 31(1) and (2) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), Articles 6, 7, and 10 of the former Trademark Decree (amended by Presidential Decree No. 13085 of Aug. 28, 1990), and Article 34(1) of the former Patent Registration Decree (amended by Presidential Decree No. 13082 of Aug. 28, 1990), where an application for registration of establishment of right to use a trademark was submitted, the Commissioner of the Korean Intellectual Property Office shall examine only the application and attached documents and determine whether to accept the application for registration in formality. Thus, it is clear that the act of registration of establishment of right to use a trademark by the Commissioner of the Korean Intellectual Property Office is a quasi-legal act that proves the existence of legal relations between private persons.

C. In a case where the Commissioner of the Korean Intellectual Property Office accepted an application for registration and completed the registration of the establishment of the right to use a trademark, the holder of the right to use the registered trademark, in violation of Article 15(1) of the former Patent Decree, has defects in the procedure for application for registration, such as unilaterally applying for the establishment of the right to use the trademark, and even if there was a reason to reject an application for registration falling under any of subparagraphs 2 through 9 of Article 34(1) of the former Patent Decree, the holder of the right to use the trademark can only claim against the licensee for the implementation of the procedure for the registration of the establishment of the right to use the trademark through civil procedure, and it shall not be deemed that

The plaintiff's lawsuit is dismissed.

All costs of a lawsuit shall be borne by the plaintiff.

1. The plaintiff's assertion that the plaintiff's registered trademark (registration number 1 omitted) is against the principle of joint application under Article 15 (1) of the former Decree on Patent Registration (amended by Presidential Decree No. 13085 of Aug. 28, 190), and the defendant applied for the registration of establishment of right to use independently based on the protocol of compromise between the plaintiff and the intervenor. The defendant accepted the application for registration and filed the registration of establishment of right to use the trademark under Article 1614 of the former Trademark Act (amended by Presidential Decree No. 1610 of Apr. 22, 1989). Article 29 of the former Decree on Patent Registration (amended by Presidential Decree No. 13085 of Aug. 28, 1990) of the former Decree on Patent Registration (amended by Presidential Decree No. 13085 of Aug. 28, 190). Thus, the court below rejected the plaintiff's claim for cancellation of the above registration right to use the trademark as one of the defendant's defense of administrative action.

2. Whether a certain act of an administrative agency constitutes an administrative disposition that is subject to an administrative litigation shall be jointly determined in addition to the nature and effect of the act, in addition to the purpose and effect of the administrative litigation system and the function of protecting the rights and interests of the people by the judicial authority (see Supreme Court Decision 82Nu370, Feb. 14, 1984). The purpose of the administrative litigation system is to relieve the infringement of the rights and interests of the people due to an administrative agency's illegal disposition and other exercise or non-exercise of public authority, and to properly resolve disputes over the relationship of rights and interests under public law or the application of law (Article 1 of the Administrative Litigation Act). Thus, the resolution of disputes surrounding the effect of an administrative disposition is merely an act of public proving the existence of legal relations between private persons, and it shall not be subject to a judicial principle, and if the cancellation of an illegal administrative disposition is not an appropriate means for remedying the rights and interests of the people or

3. According to the former Trademark Act, when an owner of a trademark right intends to use his/her registered trademark to another person, the establishment of the right to use shall be registered in the Trademark Register under the conditions as prescribed by the Presidential Decree (Article 29(1)); the right to use shall take effect by the registration of establishment; the right to use the registered trademark shall have the right to use the registered trademark within the scope of registration (Article 31(1) and the right to use the registered trademark shall be jointly submitted to the Commissioner of the Korean Intellectual Property Office (Article 29(3)) under the conditions as prescribed by the Ordinance of the Ministry of Trade, Industry and Energy when the owner of the trademark right and the user of the registered trademark intend to use the registered trademark to file an application for registration of establishment of the right to use the registered trademark (Article 6, Article 7). According to the former Trademark Decree, if an application for registration is not consistent with the original register and the reason for the establishment of the registered right (Article 34(1)1 and (2)); if the applicant fails to meet the application form of registration right to use the registered right (Article 7).

Therefore, the Commissioner of the Korean Intellectual Property Office does not have any special objection procedure against a disposition rejecting the establishment of a trademark right, so in principle, it is possible to file a claim for revocation of the rejection disposition through the administrative litigation procedure. However, in the event that the Commissioner of the Korean Intellectual Property Office accepted an application for registration and completed the registration of the establishment of a trademark right, the holder of the right to use the registered trademark has defects in the registration procedure, such as unilaterally applying for the establishment of a trademark right in violation of Article 15(1) of the former Patent Registration Decree, and there is a reason for rejection of the application for registration falling under any of subparagraphs 2 through 9 of Article 34(1) of the former Patent Registration Decree, even if there is a reason falling under subparagraph 1, and it is obvious that the registration is naturally and absolutely null and void due to the reason that the trademark right holder can file a claim against the licensee for the implementation of the registration of the establishment of a trademark right through the civil litigation procedure, and it is not possible to file a claim against the Commissioner of the Korean Intellectual

On the other hand, when the registration of the establishment of the right to use a trademark is completed, the person registered as the licensee shall be entitled to the status as the licensee for the registration, as well as to the interested parties based on the registration. Even if there is a defect in the procedure for the establishment of the right to use the trademark, such registration shall be deemed valid as long as the registration is consistent with the substantive right relationship, and even if the registration does not coincide with the substantive right relationship at the time of the registration, the registration may be a registration consistent with the substantive right relationship due to the subsequent cause. In the administrative litigation procedure claiming the cancellation of the registration, it is not appropriate to judge whether the registration itself is illegal and whether the registration is consistent with the substantive right relationship. Thus, the registration disposition cannot be revoked as long as it is judged unlawful. Accordingly, the registration disposition is revoked in conformity with the substantive right relationship, and thus, there is a concern that the title holder of the registration who has the substantial right may be deprived of the status as the licensee for the registration without bringing an opportunity to defend his own interest and thus, the dispute between the person liable for registration and the above substantive right relationship should be resolved.

According to the records of this case, the intervenor filed a civil lawsuit against the plaintiff in Seoul District Court Southern Branch of Seoul District Court claiming the implementation of the procedure for the registration of the establishment of the right to use the registered trademark of this case on December 18, 1986. The plaintiff filed a counterclaim against the intervenor claiming the implementation of the procedure for the registration of the establishment of the right to use the trademark of this case on the ground as the ground of the claim in this case.

4. Thus, even if the defendant's act of establishing a right to use the plaintiff's registered trademark in the name of the intervenor is a quasi-legal administrative act, the court below accepted the plaintiff's claim seeking cancellation of the registration disposition against the Commissioner of the Korean Intellectual Property Office on the ground that the plaintiff, who is liable for registration, can not institute an administrative litigation against the Commissioner of the Korean Intellectual Property Office on the ground of the same ground as the cause of the claim in the lawsuit in this case. However, the court below decided otherwise that the plaintiff can institute an administrative litigation, and accepted the plaintiff's claim seeking cancellation of the registration disposition. Thus, the court below did not err in the misapprehension of legal principles as to the administrative disposition which is the subject of the administrative litigation,

5. Therefore, the judgment of the court below shall not be reversed without examining the defendant litigation performers and the intervenor's attorney's other grounds of appeal, and since it is sufficient to judge the members of the party with the facts established by the court below, the final judgment shall be rendered. The plaintiff's lawsuit of this case seeking revocation of the registration disposition on the premise that the defendant's above registration disposition can be claimed as administrative litigation, is unlawful and it is obvious that the defects cannot be corrected. Thus, the lawsuit of this case cannot be dismissed without pleading and the total costs of the lawsuit are borne by the plaintiff who is the party with which the lawsuit was lost. It

Justices Yoon Jae-ho (Presiding Justice)