The meaning of "service business" under Article 2 (1) 2 of the Trademark Act and whether it can be deemed that service business is operated under the Trademark Act in a case where a service not subject to commercial transaction is provided continuously and repeatedly for a certain purpose (negative)

The term "service mark" under the Trademark Act refers to a mark used by a person who runs a service business in order to distinguish his/her service business from that of others (Article 2 (1) 2 of the Trademark Act), and the term "service business" refers to the business of providing the service that is the object of independent commercial transactions for the benefit of others. Thus, even if the service that is not the object of commercial transactions continues to and repeatedly provides the service that is not the object of commercial transactions, such as the provision of labor or benefits under a simple subparagraph, for a certain purpose, it cannot be said that the service business under the Trademark Act has been operated.

Article 2 (1) 2 of the Trademark Act

Plaintiff (Patent & Co., Ltd., Patent & Co., Ltd., Counsel for the plaintiff-appellant)

Open ASEAN (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Patent Court Decision 2012Heo2197 decided August 23, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The term "service mark" under the Trademark Act refers to a mark used by a person who runs a service business to distinguish his/her service business from that of others (Article 2(1)2 of the Trademark Act). The term "service business" refers to the business of providing the service that is the object of commercial transaction independently for the benefit of others. Thus, even if the service that is not the object of commercial transaction continues to and repeatedly provides the service that is not the object of commercial transaction, such as providing the service that is not paid any consideration, or the provision of the service or convenience under the mere subparagraph, it cannot be said that the service business under the Trademark Act was operated continuously and repeatedly

2. The court below determined that the registered service mark (registration number omitted) of this case, which is composed of "Seoul WCO Open Center" and "WCO Northern Games", is used as alleged by the defendant in relation to the operation of "Seoul WCO Open Center" and the holding of "WCO Northern Games", as long as the defendant is a corporation incorporated pursuant to the laws of the State of the United States of America, which is a non-profit organization, and does not pay any consideration for the above activities, the defendant's activities cannot be deemed as engaging in the business of providing services subject to commercial transactions, and thus, the registered service mark of this case cannot be deemed as being used for "service business" under the Trademark Act.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the concept of service business and the use of service mark.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)