In a case where a user Gap of the pre-use trademark " " "" or figure " " filed for a registration invalidation trial against Eul of the registered trademark "", the case holding that the judgment below erred in the misapprehension of legal principles on the ground that the pre-use trademark was recognized as a trademark of a specific person among domestic consumers with respect to golf kinds at the time of the filing date of the registered trademark, etc.

In a case where the user Gap of the pre-use trademark with the word " "" or the figure "" filed for a registration invalidation trial against Eul of the registered trademark "" on the ground that the registered trademark falls under Article 7 (1) 12 of the Trademark Act, the case holding that the judgment below erred by misapprehending legal principles on the ground that the articles that advertise and advertise the pre-use trademark are continued in domestic fashion magazines or online fashion information before and after the delivery of the products, such as "ging clothes, banks and liquid books" where the pre-use trademark is used, and the sales amount of the pre-use trademark products exceeds 20 square meters, and most of the agencies of the pre-use trademark products have been established in major business districts across the nation, since the pre-use trademark is recognized as a trademark among domestic consumers in relation to golf kinds around the filing date of the registered trademark with "Banyeong, Ansan, and contact lenses," etc.

Article 7 (1) 12 of the Trademark Act

Plaintiff 1 and one other (Patent Attorney Tae-dong et al., Counsel for the plaintiff-appellant)

Defendant (Patent & Multi-Patent Attorney Park Jong-chul et al., Counsel for the defendant-appellant)

Patent Court Decision 2013Heo4701 Decided October 11, 2013

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

1. In order for a registered trademark to fall under Article 7(1)12 of the Trademark Act, the pre-use trademark, compared with the registered trademark, should be recognized as a trademark of a specific person between domestic or foreign consumers at the time of the application, and the applicant for the registered trademark should use the trademark identical or similar to the pre-use trademark for unlawful purposes. Here, whether the pre-use trademark is recognized as a trademark of a specific person between domestic or foreign consumers ought to be determined based on the period of use, method, mode, scope of use, etc. of the trademark, or whether it was objectively and objectively known to the general public (see Supreme Court Decision 2012Hu672, Jun. 28, 201

2. According to the reasoning of the judgment below and the record, when the original adjudication consisting of “ging” or “mar,” the pre-use trademarks used (hereinafter “pre-use trademark products”) were released to the market on September 2007. The articles that advertise and advertise the pre-use trademarks have been realized in domestic fashion magazines or online fashion information sites, such as “find channels,” “find news,” and the advertising articles have continued after their withdrawal. The pre-use trademark products are products with a reasonable price comparison with the pre-use trademark products from September 2007 to January 2008, in light of the fact that three broadcasting companies, such as KBS, MBC, SBS, etc., were exposed to the total sales of the pre-use trademark products from 00 billion won to 200 billion won of the domestically-used trademark products, and the total sales of the pre-use trademark products from 200 billion won to 200 billion won of the domestically-used trademark products from 200 billion to 700 billion won of cultural products.

Examining these points in light of the legal principles as seen earlier, the pre-use trademarks recognized as trademarks of a specific person among domestic consumers in relation to golf kinds around January 22, 2008, which is the filing date of the instant registered trademark “(trademark registration number omitted)” (hereinafter “the instant registered trademark registration number”), which is the date of application of the instant registered trademark “Bing, Ging, and contact lenses,” etc.

Nevertheless, the court below held that the registered trademark of this case does not fall under Article 7 (1) 12 of the Trademark Act without examining the remaining requirements on the premise that the pre-use trademarks cannot be deemed to have been recognized as a trademark of a specific person among domestic consumers at the time of the filing date of the registered trademark of this case. The court below erred by misapprehending the legal principles on "a trademark recognized as indicating the goods of a specific person by domestic or foreign consumers" under Article 7 (1) 12 of the Trademark Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)