A. The meaning of the non-exclusive licensee on the grounds for revocation of trademark registration

(b) A case where a corporation whose representative director is a trademark right holder falls under another person under Article 73 (1) 1 of the Trademark Act;

A. In order to constitute grounds for revocation under Article 73(1)3 of the Trademark Act, "any person among the trademark rights holders, exclusive and non-exclusive licenses should not use the registered trademark". Unlike the exclusive license, a non-exclusive license under the Trademark Act arises only by an agreement between the trademark rights holder and the user, and the registration of establishment of a non-exclusive license is merely a requisite for counterclaim against the third party. Thus, the non-exclusive licensee is not required to be a registered non-exclusive licensee.

(b) The case holding that even though the owners of both enterprises actually own the registered trademark as the owner of the trademark, if they are the same person, they are different from the owner of the trademark right, and they shall be deemed to have independently conducted business activities under their own account and responsibility, and thus they constitute another person under Article 73 (1) 1 of the Trademark Act.

Articles 58(1)1, 73(1)1, and 73(1)3 of the Trademark Act

B. Supreme Court Decision 92Hu162,179 delivered on July 28, 1992 (Gong1992, 2668), 92Hu1431 delivered on March 23, 1993 (Gong1993Sang, 1300), Supreme Court Decision 93Hu1865 delivered on February 14, 1995 (Gong195Sang, 1340)

Patent Attorney Kim Jong-sung, Counsel for the plaintiff-appellant

Attorney Park Jong-hee, Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 92Hun-Ba428 dated July 30, 1994

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

1. According to the reasoning of the original decision, the court below acknowledged the following facts: (a) on August 1, 1991, the respondent, who is the owner of the registered trademark of this case (No. 48467) agreed to jointly use all the trademark rights and patent rights in the name of the respondent on August 1, 1991; (b) on the Carta-ro manufactured before September 10, 1991 by the above company, the manufacturer of this case used the registered trademark of this case; (c) the manufacturer of this case is Macmannn (Arcmannn); and (d) on the ground that the above (Acmannnnnn), the above (Acmannnnn) was the Korean total board of the owner of the registered trademark of this case; and (d) on the ground that no evidence was found that the claimant of the registered trademark of this case and the above (Acmannmannnnnnn) were identical to the trademark of this case; and (d) on the ground that no evidence was found to be found to be found to fall under No. 7 1) of the trademark of this case.

2. However, in order to constitute a ground for revocation under Article 73 (1) 3 of the Trademark Act, the trademark right holder, exclusive licensee, and non-exclusive licensee should not use the registered trademark. Unlike exclusive license, a non-exclusive license under the Trademark Act occurs merely by agreement between the trademark right holder and the user, and the registration of establishment of non-exclusive license is merely a requisite for counterclaim against a third party (Article 58 (1) 1 of the Trademark Act). Thus, the non-exclusive licensee mentioned above should be deemed not to be a registered non-exclusive licensee. According to the records, the respondent, who is the trademark right holder of the registered trademark of this case, entered into an agreement between the party who is the trademark right holder of the registered trademark of this case, to jointly use the trademark right and patent right under the name of the respondent, including the registered trademark of this case (Article 73 (1) 6). Accordingly, the non-exclusive licensee of this case constitutes a non-exclusive licensee prior to 23 years prior to the use of the registered trademark of this case (Article 58 (1) 6).

Nevertheless, the court below's decision that the use of the trademark of this case by Dongbama does not constitute the use of a trademark under Article 73 (1) 3 of the Trademark Act is erroneous in the misapprehension of legal principles as to non-use of a trademark, which led to failure to exhaust all necessary deliberations. The grounds for appeal assigning this error are with merit.

3. However, in light of the records and relevant evidence, the court below is just in holding that the use of the trademark identical to the registered trademark of this case in the labels and advertisements of "non-influor new", which is identical or similar to the designated goods, constitutes an use by another person under Article 73 (1) 1 of the Trademark Act, based on the evidence of the court below, and it cannot be said that there is an error of law such as the theory of lawsuit or incomplete hearing, and the precedents of party members cited in the theory of lawsuit are different from the case of this case, and it is not appropriate for the court below to invoke

According to Gap's evidence No. 6-1, which is a tool for publicity of "Irrrrish" used in the registered trademark of this case, "Irrrrrrrrrish" means "Irrrrrrrrrrrrt 200B" or "Irrrrrrrt Porrt Post Post Post Post Post Post Post Post Post Post Post Post Poste (Arrrrrrt Post Post Post Post Post Post Post Post Post 1, which is a product photo of "Irrrrrrrrrrish", and it is hard to see that the owner of the trademark of this case and the owner of the trademark of this case independently uses the trademark of this case as "Irrrrt 20'st Post Ba."

This part of the issue is without merit.

Therefore, the court below's decision that the registered trademark of this case constitutes the ground for revocation is eventually justifiable, and the court below's error as above cannot be deemed to have affected the judgment of the court below.

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

Justices Kim Jong-soo (Presiding Justice)