[1] Requirements for falling under Article 7 (1) 12 of the Trademark Act and the time to determine whether the trademark prior to use is a well-known trademark (=the time of application for the registered trademark)

[2] In determining whether a registered trademark falls under Article 7 (1) 12 of the Trademark Act, where the trademark subject to prior use is not a well-known trademark as a result of determining the well-knownness of the trademark, the remaining requirements of the registered trademark are not omitted even though it did not determine whether the trademark is "a trademark used for an unlawful purpose."

[1] Article 7 (1) 12 of the Trademark Act / [2] Article 7 (1) 12 of the Trademark Act

[1] Supreme Court Decision 2002Hu1362 decided May 14, 2004 (Gong2004Ha, 1873)

Plaintiff Foreign Company (Attorney Hwang Young-ju et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Kim Min-young, Counsel for defendant-appellant)

Patent Court Decision 2005Heo7552 Decided December 8, 2005

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In order for a registered trademark to fall under Article 7 (1) 12 of the Trademark Act (amended by Act No. 7290 of Dec. 31, 2004; hereinafter the same), the prior-use trademark being the subject of comparison shall be a well-known trademark which is remarkably recognized as a trademark of a specific person between domestic or foreign consumers. Whether prior-use trademark is authorized as a well-known trademark shall be determined at the time of application of the registered trademark (see Supreme Court Decision 2002Hu1362, May 14, 2004).

Examining the reasoning of the judgment below in light of the above legal principles, the court below recognized the facts as stated in its decision after compiling the evidence admitted in its judgment, and judged that the comparative trademark at the time of the original judgment (pre-use trademark) cannot be seen as a well-known trademark which is clearly perceived as a trademark of a specific person among domestic or foreign consumers at the time of August 22, 2001, which is the filing date of the trademark of this case, is just and acceptable, and there are no errors in the misapprehension of legal principles as to the determination of well-knownness of pre-use trademark, the rules of evidence, or the

2. Regarding ground of appeal No. 2

In order for a registered trademark to fall under Article 7 (1) 12 of the Trademark Act, the prior-use trademark subject to the prior-use trademark should be the well-known trademark first, and in this case, where the prior-use trademark subject to the prior-use trademark cannot be deemed to be the well-known trademark at the time of the original adjudication, the court below did not determine whether the trademark of this case falls under Article 7 (1) 12 of the Trademark Act, and did not determine whether the trademark of this case falls under Article 7 (1) 12 of the Trademark Act, which is the remainder of the requirement, "a

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

Justices Park Ill-sook (Presiding Justice)