[1] The standard time to determine whether a trademark is not eligible for registration under Article 7(1)7 of the Trademark Act (=the time of filing for registration)

[2] Whether a trademark which is identical or similar to a prior registered trademark and whose designated goods are identical or similar to the prior registered trademark constitutes a trademark which cannot be registered under Article 7 (1) 7 of the Trademark Act even where a trial decision on revocation of registration of the prior registered trademark becomes final and conclusive after the application for registration is filed (affirmative)

[1] Article 7 (3) 7 and 8 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) provides that Article 7 (1) 7 and 8 of the same Act shall apply to the trademark corresponding thereto at the time of filing an application for trademark registration. Thus, whether the applied trademark constitutes a trademark which cannot be registered under Article 7 (1) 7 of the same Act shall be determined as at the time of filing an application

[2] Article 73 (7) of the Trademark Act provides that the trademark right shall be extinguished from the time a trial decision revoking the trademark registration becomes final and conclusive. Thus, even if a trial decision revoking another person's trademark based on an earlier application which existed at the time of the application for trademark registration becomes final and conclusive during a trial proceeding against rejection ruling of the applied trademark, the prior registered trademark right is extinguished from the time when a trial decision to revoke the trademark registration becomes final and conclusive, or does not become invalid from the beginning, and thus, the applicant trademark is identical or similar to the prior registered trademark, and as long as the designated goods are identical or similar to the designated goods, the applicant trademark shall not be registered pursuant to Article 7 (1) 7 of the Trademark Act, and even if a trial decision becomes final and conclusive on the ground that no prior registered trademark was used once

[1] Article 7 (1) 7 and (3) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) / [2] Articles 7 (1) 7 and 73 (7) of the Trademark Act

[1] [2] Supreme Court Decision 97Hu1863 delivered on April 14, 1998 (Gong1998Sang, 1363) / [1] Supreme Court en banc Decision 93Hu1834 delivered on April 25, 1995 (Gong195Sang, 1869), Supreme Court Decision 95Hu484 delivered on September 29, 1995 (Gong1995Ha, 3628), Supreme Court Decision 95Hu1401 delivered on March 12, 1996 (Gong196Sang, 1265), Supreme Court Decision 97Hu1429 delivered on February 27, 1998 (Gong198Sang, 912) / [2] Supreme Court Decision 95Do19639 delivered on September 26, 195 (Gong1995Sang, 912)

Unincorporated Medical Institute (Patent Attorney Shin Young-young, Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 96Na1879 dated September 30, 1997

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

The grounds of appeal are examined.

Article 7 (3) of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) provides that Article 7 (1) 7 and 8 of the same Act shall apply to a trademark which falls thereunder at the time of filing an application for trademark registration. Thus, whether a trademark for which an application for trademark registration is not registered under Article 7 (1) 7 of the same Act shall be determined at the time of filing of the application for trademark registration. In addition, where a trial decision revoking a trademark registration becomes final and conclusive under Article 73 (7) of the same Act, the trademark right shall be extinguished from the time of filing of the application for trademark registration. Thus, even if a trial decision on revoking another person's registered trademark (hereinafter referred to as "prior registered trademark") based on an earlier application which existed at the time of filing of the application for trademark registration becomes final and conclusive during a trial procedure against rejection ruling of the applied trademark, the prior registered trademark right shall be extinguished from the time of filing of the application for trademark registration and its designated goods are identical or similar to the registered trademark, and thus, it shall not be revoked after 9497.

Examining the reasoning of the decision of the court below in light of the aforementioned legal principles and records, even though the decision of revocation of registration due to the non-use of the cited trademark which was another person's registered trademark by earlier application on March 29, 1997, which was after the date of application for the registration of the trademark of this case (hereinafter referred to as the "original trademark") was finalized on March 29, 1997, the quoted trademark right remains valid at the time of March 22, 1994, which was the date of application of the original trademark, and the designated goods similar to the quoted trademark are legitimate, and the decision of rejection of registration under Article 7 (1) 7 of the Trademark Act as to the original trademark which was similar to the cited trademark, and there is no violation of law such as misunderstanding of legal principles or omission of judgment as alleged in the grounds for

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Cho Cho-Un (Presiding Justice)