[거절사정][집39(1)특,581;공1991.5.15,(896),1284]
Where the registration of an applied trademark is similar to the cited trademark of another person registered by an earlier application, and the invalidation of the registration of the cited trademark becomes final and conclusive, whether the applied trademark falls under Article 9(1)7 of the former Trademark Act (negative)
Where a decision of invalidation of a trademark becomes final and conclusive, the trademark right shall be deemed not to have existed from the beginning, unlike the time when the decision of revocation of trademark registration becomes final and conclusive or when the trademark right is cancelled, so even if there was a cited trademark at the time of the application for trademark registration, the cited trademark shall be deemed not to have existed retroactively as long as the invalidation of trademark registration becomes final and conclusive as to the cited trademark at the time of the application for trademark registration, and the cited trademark, which is the " another person's registered by an earlier application," which is the ground for refusal of trademark registration, is deemed to have
Article 48(2) of the Trademark Act, Article 7(1)7 of the Trademark Act, Article 71(3) of the Trademark Act
E. A. Sa. Sa. L. Sa. L. Sa. L. Sa. V. L. L. Sa. T. L. L. L. L. L. L. L. L. L.C., Attorney Lee Byung-ho, Counsel for the defendant-appellant
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Trial Office Decision 89Na295 dated December 29, 1989
The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.
As to the ground of appeal by the applicant's attorney
According to the records, on July 15, 1987, the applicant filed an application for the trademark composed of English language "TAURIN" as an antibiotic substance medication, animal medication, sterilization, pulmonary agents, and blood medication. On January 16, 1989, the other party rendered a ruling of rejection on the ground that the above applied trademark is similar to the trademark registration number No. 13204, which is the registered trademark of another person. However, upon examining the reasoning of the original decision, the above cited trademark is a trademark composed of Korean and English language "," and it was renewed on August 10, 197 and renewed the registration as the designated goods on August 10, 198, and the invalidation of the trademark becomes final and conclusive as of March 7, 198, and the above applied trademark and the cited trademark were registered only as the trademark "," and thus, the trademark prior to the application for trademark invalidation or invalidation is justified in the trademark registration No. 13204, Mar. 17, 1987.
However, in a case where a decision of invalidation of a trademark becomes final and conclusive, the trademark right is deemed not to have existed from the beginning, unlike the time when the decision of revocation of trademark registration becomes final and conclusive or when the trademark right is cancelled (Article 48(2) of the above Trademark Act). In this case, even if the trademark was quoted at the time of the application for trademark registration, the cited trademark did not have the trademark retrospectively, as long as the invalidation of trademark registration as to the cited trademark becomes final and conclusive, even if there was a trademark at the time of application for trademark registration, and thus, the cited trademark, which is the " another person's trademark registered by the earlier application," which is the ground for refusal of trademark
The court below supported the measures of rejection ruling of the applicant's trademark on different opinions is to have erred by misapprehending the legal principles on the validity of the trademark invalidation decision, or by wrong interpretation of Article 9 (1) 7 of the Trademark Act, which affected the result of the trial decision, and thus, it is reasonable to discuss it.
Therefore, without further proceeding to decide on other grounds of appeal, the original decision is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Sang-won (Presiding Justice)