Whether a trademark for which a trial decision to invalidate the duration renewal registration has become final and conclusive falls under “ another person’s registered trademark by an earlier application” under Article 9(1)7 of the former Trademark Act.

Where a trial decision to invalidate a trademark becomes final and conclusive, the trademark right shall be deemed not to have existed from the beginning, unlike the time a trial decision to revoke the trademark registration becomes final and conclusive or the trademark right is cancelled, and where a trial decision to invalidate the trademark registration becomes final and conclusive, the trademark term renewal registration shall be deemed not to have existed from the beginning. Thus, even if the trademark term renewal registration was renewed at the time of the application for trademark registration, if a trial decision to invalidate the trademark term renewal registration becomes final and conclusive as long as a trial decision to invalidate the trademark term renewal registration becomes final and conclusive at the time of application for trademark registration, the cited trademark shall be deemed not to have existed retroactively at the time of application for trademark registration, and ultimately, the cited trademark shall not be deemed to constitute "other person's registered trademark by an earlier application" under Article 9(1)7 of the former Trademark Act

Articles 9(1)7 and 48(3) (see Articles 7(1)7 and 72(3) of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990); Articles 7(1)7 and 72(3) of the Trademark Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Pacific Chemical Inc.

Co., Ltd.

Korean Intellectual Property Office Decision 91Na382 dated August 31, 1993

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal No. 1 are examined.

The court below held that since the cited trademark which was registered on Sep. 6, 1975 and registered on Jan. 8, 1988 after the respondent filed an application on Aug. 12, 1986 and registered on Jan. 8, 198 and registered on Apr. 14, 1986 was similar to the cited trademark for which the adjudication on renewal of the duration became final and conclusive on Apr. 17, 1992, and its designated goods and names are similar, if both trademarks are used on the designated goods, there is a concern for consumers to mislead and confuse the source of goods. Thus, the fact that the trademark registration invalidation exists at the time of filing an application for trademark registration under Article 9 (3) of the former Trademark Act, and its illegality is not cured since the fact that the trademark invalidation was extinguished after the registration of the original trademark, even if the adjudication on renewal of duration invalidation becomes final and conclusive after the registration of the original trademark, the original trademark violates Article 9 (1) 7 of the former Trademark Act (amended by Act No. 4213, Jan. 13, 19, 1990). 7). 7 of the same.

However, when a trial decision to invalidate the registration of a trademark becomes final and conclusive, the trademark right shall be deemed not to have existed from the beginning, unlike the time a trial decision to revoke the registration of the trademark becomes final and conclusive, and when a trial decision to invalidate the registration of trademark invalidation becomes final and conclusive, the trademark right renewal registration shall not be deemed to have existed from the beginning (see Article 48(2) and (3) of the former Trademark Act, and Article 90Hu281, Mar. 22, 1991). In this case, even if the term of the cited trademark at the time of the application of the original trademark is renewed even if the term of the cited trademark was renewed at the time of the application of the original trademark, the trademark renewal registration of the cited trademark shall be deemed not to have existed retroactively as long as the final and conclusive trial decision to invalidate the term has become final and conclusive at the time of the application of the original trademark, and the cited trademark shall not be deemed to fall

The court below's decision that the registration of the original trademark is invalid because it is similar to the cited trademark registered prior to the registration of the original trademark is erroneous in the misapprehension of legal principles as to the validity of the decision on the renewal of the duration of trademark rights or the interpretation of Article 9 (1) 7 of the former Trademark Act, which affected the conclusion of the decision. Therefore, the ground for appeal

Therefore, without further proceeding to decide on other grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-ho (Presiding Justice)