Whether an act of cancellation of trademark right can be subject to appeal litigation on the ground that the registration of completion of liquidation for a corporation which is a trademark right holder is registered (negative)

Even if the registration of cancellation was made on the trademark register for the reason that the registration of cancellation of trademark right was made on the ground that the registration of completion of liquidation for a corporation which is a trademark right holder, it is nothing more than a factual and confirm act that confirms the extinguishment of trademark right, and it does not take effect only after the registration of cancellation. Therefore, the registration of cancellation of trademark right is an act that directly

Meanwhile, Article 27 of the Decree on the Registration of Patent Rights, etc. (hereinafter “the Decree on the Registration of Patent Rights”) upon delegation of Article 39(3) of the Trademark Act provides that “where an application is filed for the restoration of cancelled registration and a third party who has an interest in the registration exists, his/her written consent or a certified copy of a trial against him/her shall be attached to the application.” However, even where the registration of establishment of trademark rights is cancelled, an application for restoration registration pursuant to Article 27 of the Decree on the Registration of Patent Rights may be filed, and

In full view of these points, the act of cancellation of trademark right on the ground that the registration of completion of liquidation for a corporation which is a trademark right holder is not subject to appeal litigation.

Article 2(1)1 of the Administrative Litigation Act; Articles 39(3), 56(1), 58(1), and 64(2) of the Trademark Act; Article 27 of the Decree on Registration of Patent Rights, etc.

Supreme Court en banc Decision 2000Du9229 Decided November 22, 2002 (Gong2003Sang, 225), Supreme Court en banc Decision 2008Du167 Decided November 18, 2010 (Gong2010Ha, 2279), Supreme Court Decision 2010Du19720 Decided June 14, 2012 (Gong2012Ha, 125)

[Judgment of the court below]

The Commissioner of the Korean Intellectual Property Office

Seoul High Court Decision 2013Nu7768 decided December 27, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 3

A. Whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. Under a specific case, an administrative disposition is an enforcement of law with respect to a specific fact by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. In mind, the decision should be made by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the purpose of the administrative litigation system, the protection of the rights and interests of the people through the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010; Supreme Court Decision 2010Du19720, Jun. 14, 2012).

Article 64(2) of the Trademark Act provides that a trademark right of a corporation under process of liquidation shall expire on the day following the date of registration of completion of liquidation, if the registration of transfer of a trademark right is not made by the date of registration of completion of liquidation (if the liquidation work has not yet been completed even if the registration of completion of liquidation was made, the date whichever comes earlier between the date of completion of liquidation and the date of registration of completion of liquidation, whichever comes earlier). Furthermore, the Trademark Act only lists the cases where the registration of a trademark right is the requisite for taking effect of the creation or change of a right or where it is a requirement for setting up against a third party (Articles 56(1) and 58(1) of the Trademark Act), and Article 56(1)1 of the Trademark Act provides that a trademark right under process of liquidation shall not take effect unless it is registered for the extinguishment of a trademark right due to the waiver among the causes of extinguishment of a trademark right (Article 56(1) of the Trademark Act). Thus, even if the registration of cancellation was made on the ground that the trademark right has been extinguished, this does not directly affect the rights and obligations of a citizen.

Meanwhile, Article 27 of the Decree on the Registration of Patent Rights, etc. (hereinafter “the Decree on the Registration of Patent Rights”) upon delegation of Article 39(3) of the Trademark Act provides that “where a third party who has an interest in the registration applies for the restoration of cancelled registration, a written consent thereof or a certified copy of a court judgment against it shall be attached to the application.” However, even where the registration of establishment of trademark rights is cancelled, an application for restoration registration pursuant to Article 27 of the Decree on the Registration may be filed, and where the application is rejected, an appeal against the rejection disposition may be filed (see Supreme Court Decision 200Du9229, Nov. 22, 2002).

In full view of these points, it is reasonable to view that the registration of cancellation of trademark right cannot be subject to appeal litigation on the ground that the registration of completion of liquidation for a corporation which is a trademark right holder.

B. Reviewing the reasoning of the lower judgment and the record, the following facts are as follows: (a) Geumyang Products Co., Ltd. (hereinafter “gold Product Products”) was registered after liquidation was completed on December 6, 2010; (b) the registration of provisional seizure on December 28, 2010 was made upon request of the Plaintiff with respect to the instant trademarks Nos. 1, 2, and 3 (each trademark registration number omitted); and (c) on May 25, 201, the said provisional seizure was transferred to the original seizure; and (d) on February 16, 2012, the Plaintiff was ordered to transfer the said provisional seizure to Sungwon District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch issued an order of transfer on April 18, 2012; (d) the Defendant, ex officio, was registered on December 21, 2012; and (e) the Defendant, ex officio, 2012 subparag. 214. 214.

In light of the above legal principles, the act of cancellation of each trademark right of this case on the ground that the registration of cancellation of each trademark right of this case was registered for the completion of liquidation of gold and water delivery does not cause the effect of extinguishment of trademark right, and there are other legal remedies such as recovery application and appeal litigation against the rejection disposition against the above act of cancellation. Thus, each of the trademark rights of this case cannot be viewed as the act of cancellation of trademark right of this case.

C. Therefore, although the judgment of the court below which dismissed the plaintiff's lawsuit of this case seeking revocation of each trademark right of this case, its conclusion that the lawsuit of this case is unlawful is just, and it is not erroneous in the misapprehension of legal principles as to the legitimate requirements of an appeal litigation as alleged in the grounds of appeal.

2. As to the fourth ground for appeal

Even if the plaintiff requested an ex officio adjudication on the constitutionality of a law after a request for adjudication on the constitutionality of a law was rejected, it is only meaningful to urge the court to make an ex officio request, and thus, it is not necessary to determine this. Therefore, the judgment of the court below is not erroneous in the omission of judgment as alleged in the

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)