[1] The meaning of an interested party entitled to file a petition for an invalidation trial on the registration of service mark and the standard time for determining whether to correspond to it (=time of adjudication)

[2] The case holding that there is a benefit of lawsuit seeking revocation of a trial decision, since legal interest to revoke a trial decision is not extinguished due to the circumstances after the trial decision, since it is difficult to view that there was an agreement between the parties on the lawsuit since the fact that the unfavorable trial decision received in the patent trial procedure continues to exist effectively and explicitly, and the intention to use the registered service mark was expressed explicitly

[3] The case holding that the registered service mark " " constitutes "a service mark which does not distinguish between consumers' display of service business related to anyone's business" under Article 6 (1) 7 of the Trademark Act

[4] In a case where a mark which appears to have no distinctiveness has been used and thus has been recognized as an identification mark indicating the source of service business among consumers, whether the distinctiveness can be recognized even for the service mark and service business similar to the service mark and service business actually used (negative), and the standard time for determining whether the trademark has been acquired (=the time of registration decision or decision of refusal)

[1] Article 71 of the Trademark Act / [2] Article 86 of the Trademark Act, Article 186 of the Patent Act, Article 12 of the Administrative Litigation Act / [3] Article 6 (1) 7 of the Trademark Act / [4] Article 6 (1) 7 of the Trademark Act

[1] Supreme Court Decision 91Hu240 delivered on November 26, 1991 (Gong1992, 312), Supreme Court Decision 2001Hu584 Delivered on August 21, 2001 (Gong2001Ha, 2120), Supreme Court Decision 2005Hu3291 Delivered on September 14, 2006 (Gong2006Ha, 1764), / [3] Supreme Court Decision 2007Hu301 Delivered on May 28, 2009 (Gong209Ha, 1038), 2007Hu325 Delivered on May 28, 2009) / [4] Supreme Court Decision 2007Hu33289 Delivered on May 31, 209, 2007Hu329638 Delivered on May 28, 2007)

Plaintiff 1 and seven others (Law Firm Barun et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Sejong and four others, Counsel for the defendant-appellant)

Patent Court Decision 2005Heo954 decided July 11, 2007

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the person is an interested party in the invalidation of registration;

An interested party entitled to file a petition for an invalidation trial on the registration of a service mark means a person who used or currently uses a service mark identical or similar to the registered service mark for the same or similar designated service business, or who carries on the same kind of service business as the registered service mark designated (see, e.g., Supreme Court Decisions 85Hu59, Mar. 22, 198; 2001Hu584, Aug. 21, 2001); and whether a person is an interested party should be determined at the time of the trial decision (see, e.g., Supreme Court Decisions 91Hu240, Nov. 26, 1991; 2005Hu3291, Sept. 14, 2006).

In light of the above legal principles and records, the plaintiffs who engage in the same service business as the defendant are interested parties entitled to file a petition for invalidation trial on the registered service mark of this case, and the circumstances after the defendant's trial decision was rendered cannot be considered. Thus, the court below is just in holding that the plaintiffs are interested parties entitled to file a petition for invalidation trial on the registered service mark of this case, and there is no violation of law as

2. Whether a lawsuit seeking cancellation of the trial decision is beneficial.

As long as a party against whom a trial ruling was rendered in a patent trial remains valid, there is a benefit in legal action seeking the revocation of the trial ruling, barring special circumstances, such as the extinction of legal interest to revoke the trial ruling due to the subsequent circumstances.

In light of the above legal principles and records, the plaintiffs have a valid trial decision which was disadvantageous to the patent trial procedure, and the plaintiffs expressed explicitly and repeatedly that they did not intend to use the registered service mark at the original stage cannot be deemed to have reached an agreement on the lawsuit between the parties. Therefore, the plaintiffs have a legal interest to seek revocation of the trial decision of this case. Therefore, the court below's decision to the same purport is just, and there is no violation of law as otherwise alleged in the grounds of appeal by the defendant.

3. Whether the registered service mark of this case constitutes a service mark with no distinctive character or other service mark

In light of the records, the registered service mark of this case (registration number No. 9500) is often used by anyone as a mark, such as "Korean bank" and "Woori Bank", which is its English, as the service mark consisting of the above and below. Of these, "Korea bank" is a registered service mark of this case, "Woori Bank" and "Woor Bank" is a service mark which is a combination of the above. It is hard to recognize the distinguishability of the mark as a mark as a mark, and there is no violation of the law of this case as to the formation of a new concept of distinguishing service mark of this case or to the purport that there is no new concept of distinguishing the service mark of this case from "Korean bank" and "Woor Bank", and there is no violation of the law as to the formation of a new concept of distinguishing the service mark of this case or to the purport that there is no new concept of distinguishing the service mark of this case as it is a combination of "Korea" and "Korea," and there is no violation of the trademark law of this case.

4. Whether the registered service mark of this case has acquired distinctiveness

Even if a mark deemed non-distinctive as a result of the use of the mark has a remarkably recognizable distinctiveness among consumers as an identification mark indicating the source of service business, the acquisition of distinctiveness by use is limited to the service mark actually used and the service business in which the service mark is used, and the acquisition of distinctiveness by use cannot be recognized until the service mark and the service business similar thereto (see, e.g., Supreme Court Decisions 95Hu1968, May 31, 1996; 2006Hu2288, Sept. 25, 2008). Meanwhile, whether a trademark acquired distinctiveness by such use should be determined at the time of registration or decision of refusal (see, e.g., Supreme Court Decisions 2002Hu1768, May 16, 2003; 2006Hu3397, 3430, 3437, Nov. 13, 2008);

In light of the above legal principles and the records, the court below is just in holding that the registered service mark of this case consisting of the above "Korea bank," "Woori Bank," and "Woori Bank," other than "Korea," used for its designated service business, and that the registered service mark of this case, which is composed of the above mentioned above, has reached a significant recognition of its mark as indicating a service business related to anyone's business among consumers at the time of the decision of registration of this case. The defendant's ground of appeal related to this is without merit since it criticizes the court below's independent opinion.

5. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)