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

(a) Details of the trial decision;

원고는, 자신이 사용하고 있는 아래 다.항 기재의 확인대상표장이 그 외관, 호칭, 관념이 상이한 점 등으로 피고의 아래 나.항 기재 이 사건 등록상표의 권리범위에 속하지 아니한다는 이유로 소극적 권리범위확인심판을 청구하였는바, 특허심판원은, 양 상표가 요부인 ‘핫윙’ 부분으로 인하여 유사상표에 해당한다는 이유로 원고의 청구를 기각하는 청구취지 기재의 이 사건 심결을 하였다.

B. The registered trademark of this case

(1) Composition:

(2) Date of application/registration date/registration number: March 9, 2001/ June 10, 2002/ No. 522414

(c) Designated goods: Dried meat, meat, etc. of Category 29 classified by the category of goods;

(c)a challenged mark;

(1) Composition:

(b) Goods using: The cryp of a chickens whose spash is not good;

【Ground for Recognition: Facts without dispute】

2. Issues between the Parties in this case

양 상표에 공통으로 포함되어 있는 ‘핫윙’ 부분이 지정·사용상품의 보통명칭이나 기술적 표장에 해당하는지 여부, 양 상표가 ‘핫윙’ 부분만으로 분리 호칭될 수 있는지 여부 및 지정상품과 사용상품이 동일·유사한지 여부이다.

3. Whether the lawsuit of this case is legitimate

Before determining the merits, we examine the legitimacy of the instant lawsuit ex officio.

A. Criteria for determination

(1) The instant litigation seeking revocation of a trial decision is a type of separate individual administrative litigation, and must be provided with the benefit of protecting the rights to seek revocation of a trial decision, which is a legitimate requirement of a lawsuit. In order to protect the rights, the actual benefit alone is insufficient, and the legal effect following the confirmation of a trial decision is likely or likely to be disadvantaged by the Plaintiff, and thus, the revocation of a trial decision must have legal interest to be restored.

(2) The trial to confirm the scope of trademark right does not simply confirm the technical scope of the registered trademark itself, but also confirm the scope of the effect of trademark right in relation to the subject matter at issue (see, e.g., Supreme Court Decisions 82Hu24, Oct. 26, 1982; 90Hu373, Mar. 27, 1991; 90Hu373, Oct. 27, 1991); for the sake of the benefit of confirmation of legal relations, it is necessary to immediately confirm the scope of the effect of trademark right in accordance with the legal relations as the subject matter of confirmation in order to remove the risks or omissions existing in the claimant's rights or legal status, and it should be the most effective and appropriate means (see, e.g., Supreme Court Decision 95Da26131, Oct. 12, 195).

However, even if a trial decision on whether a trademark used in comparison with a registered trademark falls under the scope of the right of the trademark right becomes final and conclusive by the trial decision to confirm the scope of the right of the trademark right, it does not have the legal binding force as to the infringement of the trademark right, and the infringement is finally determined by a final and conclusive judgment by civil procedure, such as a

In light of the legal nature of the adjudication to confirm the scope of a patent right, the adjudication to confirm the scope of a patent right itself has the limit of becoming the most effective and appropriate means in resolving disputes related to the infringement of a trademark right. However, when a dispute over whether a trademark used in comparison with a registered trademark falls under the scope of the trademark right, the adjudication to confirm the scope of protection of the registered trademark in question through a public judgment of a specialized state agency and can find an institutional significance of the adjudication to confirm the scope of a patent right to the extent that it can be

(3) Therefore, the adjudication to confirm the scope of a trademark right has a practical dispute as to the scope of effect of the registered trademark in relation to the specific comparison target trademark which the claimant is the object of the adjudication. There is a benefit of confirmation in the case where there is a practical benefit in determining whether or not the scope of the right is within the scope of the right before the adjudication is rendered on the same object of the adjudication, such as a claim for prohibition of infringement or a claim for damages, which is the most effective and appropriate means of dispute resolution. If there is no actual dispute between the parties, or otherwise, a civil lawsuit is instituted first, which is the most effective and appropriate means of dispute resolution to resolve the dispute, and the judgment has already been rendered, and in the process, there was a circumstance that the adjudication of the adjudication to confirm the scope of a right by a public judgment of a specialized state agency, which could first be considered in the above main decision, it is reasonable to deem that there is no practical benefit in determining the propriety of the decision, which is an intermediate means of dispute resolution, which is the intermediate means of the adjudication to confirm the scope of right.

B. Determination in this case

[Based on Recognition: Facts without dispute, Gap evidence 1 through 18, Eul evidence 1 through 26 (including each number), significant facts in this court, rule of experience, purport of whole pleadings]

(1) On July 11, 2006, the defendant filed a civil lawsuit against the plaintiff on July 1, 2006 against Suwon District Court 2006Gahap12384 seeking prohibition of trademark infringement and compensation for damages, and the plaintiff filed a lawsuit against the defendant on March 21, 2007 to confirm the scope of the right of the trademark of this case with the Intellectual Property Tribunal. On April 28, 2008, the court below erred in the decision of this case that the challenged Intellectual Property Tribunal belongs to the scope of the right of the trademark of this case, and the Suwon District Court rendered a decision dismissing all the defendant's civil lawsuit on July 25, 2008 on the ground that the mark subject to confirmation was not in violation of the trademark right of the registered trademark of this case. The appeal is pending by the defendant.

(2) Examining the above facts in light of the aforementioned determination criteria, if the plaintiff and the defendant filed a lawsuit on the prohibition of infringement and compensation for damages, which is the most effective and appropriate means to resolve the dispute over the trademark of this case and the challenged mark, first, and the judgment was rendered, and during that process, the decision of this case, which is a public judgment of a specialized state agency, was first rendered and could have been considered in the above main judgment, the resolution of the dispute through the appeal procedure of the above main judgment would be the most effective and appropriate means, and even if it is hard to confirm the legitimacy of the decision of this case, which is the intermediate means of the dispute resolution, through the litigation to revoke the decision to confirm the scope of the right of this case.

(3) Therefore, the instant lawsuit seeking revocation of the trial decision became void.

4. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed.

Judges Sung-sung (Presiding Judge) (Presiding Justice)