[1] The scope of "other persons" under Article 73 (1) 1 of the former Trademark Act

[2] In a case where a trademark right holder of a registered trademark is indicated as a "production" on the product packing, whether a company outside the claim can be seen as a "other person" under Article 73 of the former Trademark Act in the case where the non-claimer is indicated as a "technical cooperation," a "technical cooperation," and the "total seller"

[1] The "other person" under Article 73 (1) 1 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) refers to a person who is a separate manager from the trademark right holder and independently conducts business activities under his/her own responsibility and responsibility, and the "products of the trademark right holder" cannot be viewed as an agent who is in a partnership with the trademark right holder or uses the registered trademark on the "products of the trademark right holder.

[2] In the case where the trademark right holder of the registered trademark is indicated as the manufacturer, and the non-party corporation is indicated as the "technical cooperation or general seller" in the packaging of the product, it is merely deemed that the non-party company has the same status as the partner or sales agent of the above trademark right holder, and it is difficult to view that the non-party company which received the above registration right holder's transfer of the product manufacturing technology from the above registration right holder and expressed the fact that the non-party company manufactured and sold it. Thus, it cannot be recognized that the trademark right holder of the registered trademark allows the non-party company to use the registered trademark without the registration of the right to use the product.

[1] Article 73(1)1 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) / [2] Article 73(1)1 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997)

[1] Supreme Court Decision 88Hu943 delivered on May 23, 1989 (Gong1989, 1003), Supreme Court Decision 88Hu622 delivered on July 11, 1989 (Gong1989, 1236), Supreme Court Decision 92Hu162 delivered on July 28, 1992 (Gong192, 268), Supreme Court Decision 93Hu1865 delivered on February 14, 1995 (Gong195, 1340)

lelewwslewws (Patent Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant)

Appellant 1 et al. and one other

Korean Intellectual Property Trial Office Decision 95 No. 110 decided May 28, 1997

The appeal is dismissed. All costs of appeal are assessed against the claimant.

The grounds of appeal by the claimant (if the supplemental appellate brief was not timely filed, to the extent that it supplements the grounds of appeal) are examined.

1. According to the reasoning of the court below's decision, the court below held that the registered trademark of this case was properly used for the designated goods by the owner of the trademark of this case, since it was recognized that the registered trademark of this case was being used as one of the designated goods of this case on November 4, 1993 by 2, an applicant for the trial, who is engaged in food processing business in the name of Maroc Food, as the joint owner of the trademark of this case, and around the day of the request for the revocation of the trademark of this case, around three years and less than three years before the day of the request for the revocation of the trademark of this case, but the above respondent had produced it after obtaining permission for business of the head of Seosan, which is the head of the competent Gun, which is necessary for the manufacturing of Maroc Food under the Food Sanitation Act. In light of the records, the above recognition and decision of the court below is just, and there is no error

2. The phrase "other persons" under Article 73 (1) 1 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) refers to a person who is separate manager from the trademark right holder and independently conducts business activities under his/her own responsibility and responsibility, and the phrase "products of the trademark right holder" cannot be viewed as a "products of the trademark right holder" (see, e.g., Supreme Court Decisions 88Hu943, May 23, 1989; 88Hu622, Jul. 11, 1989; 93Hu1865, Feb. 14, 1995).

According to the records, it can be seen that Maroc Food is indicated as "technical cooperation and general sales personnel" on the package of the product "Maroc Food manufactured in the above Maroc Food," and that the Korea Natural Science Co., Ltd., other than the claimed (hereinafter referred to as the "Nonindicted Co., Ltd.") indicated as "technical cooperation and general sales personnel". However, this is merely the fact that the above respondent has produced the product under partnership with the technology of the company other than the claimed, and again stated that the company other than the claimed was in the same position as the partner or sales agent of the above respondent, and it is difficult to see that such indication is a mere fact that the non-claim Co., Ltd. has manufactured and sold the product by receiving the product manufacturing technology from the above respondent, and it is difficult to view that the non-claim Co., Ltd. was in the same position as the above respondent's partner or sales agent. Accordingly, it cannot be acknowledged that the trademark owner of the registered trademark of this case without the establishment of the right to use the registered trademark of this case, and there is no evidence to recognize it otherwise on the record.

In the same purport, the decision of the court below which rejected the claimant's assertion that the above claimant used the registered trademark of this case to another person is just, and there is no error of law such as misunderstanding of legal principles as to the above legal provisions, incomplete hearing, or misunderstanding of facts, etc.

3. 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 Shin Sung-sung (Presiding Justice)