[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 legal interest in seeking revocation of a trial decision, in a case where a unfavorable trial decision received in a patent trial procedure remains effective and an intent to use a registered service mark is explicitly and repeatedly stated in the trial

[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] The meaning of "a trademark likely to be contrary to the public order or good customs" under Article 7 (1) 4 of the former Trademark Act

[5] The case holding that the registered service mark " " constitutes "a trademark which is likely to disturb the public order or good customs" under Article 7 (1) 4 of the former Trademark Act and thus is not registered

[1] An interested party entitled to file a petition for an invalidation trial on the registration of a service mark means a person who uses or currently uses a service mark identical or similar to that of the registered service mark for a designated service business identical or similar to that of the registered service mark, or carries on the same kind of service business as that of the registered service mark, and thus has a direct interest in the extinction of the registered service mark, and the determination of whether the person is an interested

[2] The case holding that there is a benefit in legal action 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, on the ground that the unfavorable trial decision received in the patent trial procedure continues to exist effectively and explicitly, and that the statement of intent to use the registered service mark was made clearly and repeatedly, and it cannot be seen that there was an agreement between

[3] The case holding that the registered service mark " " " " which combines ' without distinctiveness and ' banks" constitutes "service mark which does not distinguish consumers as to whom a person's business is indicated" under Article 6 (1) 7 of the Trademark Act since it does not create a new concept or form a new distinctive character through its combination

[4] Article 7 (1) 4 of the former Trademark Act (amended by Act No. 8190 of Jan. 3, 2007) provides that trademark registration shall not be granted for a trademark that is likely to disturb the public order or good customs. Here, the term "trademark that is likely to disturb the public order or good customs" refers not only to the case where the composition of the trademark itself or the meaning or contents of the trademark, when used for designated goods, are contrary to the public order or good customs, which is the ordinary moral sense of the general public, but also to the case where the use of the trademark violates the good customs such as fair distribution order of goods or international trust and morality, and if the use of the trademark infringes on the public interest of the society, it shall not be permitted as it violates the public order.

[5] The case holding that the registered service mark " "," which is allowed to be registered, constitutes "a trademark which is likely to disturb the public order or good customs" under Article 7 (1) 4 of the former Trademark Act (amended by Act No. 8190 of Jan. 3, 2007) and thus, constitutes "a trademark which is likely to disturb the public order or good customs" and thus, constitutes "a non-registered service mark" and thus, constitutes "a trademark which is likely to disrupt the public order or good customs by impairing the public interest of society by hindering the free use of the word "us" and is contrary to the distribution order of fair service business by granting benefits to its registrant

[1] Article 71(1) 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 7(1)4 of the former Trademark Act (amended by Act No. 8190 of Jan. 3, 2007) / [5] Article 7(1)4 of the former Trademark Act (amended by Act No. 8190 of Jan. 3, 2007)

[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) / [4] Supreme Court Decision 97Hu860, 877, 884 Delivered on April 21, 200 (Gong200Sang, 1293), Supreme Court Decision 2004Hu271 delivered on October 28, 2005 (Gong2005Ha, 188Ha, 208)

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 2005Heo9886 Decided July 11, 2007

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Patent Court. All of the Defendant’s appeals are dismissed.

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

1. Judgment on the Defendant’s grounds of appeal

(a) 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

B. Whether a lawsuit seeking revocation of the trial decision has been filed

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.

C. Whether the registered service mark of this case constitutes other distinctive service mark

In light of the records, the registered service mark of this case (registration No. 56341) is a service mark consisting of Korean language “Korea” and “bank.” The registered service mark of this case is a service mark that combines “Korea” and “Korea” and “Korea” and “Korea shall hear with oneself, or in a personal name representing many persons including himself/herself and hear,” “one who represents several persons including himself/herself as the other party of a person who is not his/her own high interest,” and “a word used in the course of expressing that he/she is a close relation with himself/herself,” and thus it is difficult to recognize the distinctiveness of the mark as a mark. The registered service mark of this case is a service mark that combines “Korea” and “bank,” and it does not form a new concept or a new distinctive character. Thus, the registered service mark of this case does not constitute a service mark related to a consumer under Article 6(1)7 of the Trademark Act as alleged in the ground of appeal by the Defendant.

D. Whether distinguishability of the registered service mark of this case has been acquired through the use of some designated service business

Whether consumers under Article 6 (1) 7 of the Trademark Act indicate services related to whose business the service mark is not recognizable as a result of the use of a service mark which does not enable consumers to identify whose service it indicates, shall be determined at the time of registration decision or decision of refusal (see, e.g., Supreme Court Decisions 2002Hu1768, May 16, 2003; 2006Hu3397, 3403, 3410, 3427, 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 was used by the time of the registration decision or additional registration decision of the service mark of this case with respect to the "banking business, international financial business, credit service business, loan financing business, broom card issuance business, lease financial business, guarantee business, credit card issuance business, credit card service business, trust business, bill exchange business, travelers' check issuance business, savings bank business, electronic financing substitution business, securities business, securities business, securities brokerage business, investment financing business, factoring service business, installment sale and financing business, exchange business, valuable money deposit business, lottery ticket issuance business, financial assessment business, financial assessment business, real estate, real estate rental business, bond purchase business, corporate financial business, and corporate financial business" among its designated service businesses, and it cannot be seen that it was remarkably recognized that the service mark of this case was used by the time of registration decision or additional registration decision, and the defendant's argument in the grounds for appeal is not acceptable because it is against the original opinion of the court below or criticize legitimate fact-finding by the court.

2. Judgment on the plaintiffs' grounds of appeal

Article 7 (1) 4 of the former Trademark Act (amended by Act No. 8190 of Jan. 3, 2007; hereinafter the same) provides that trademark registration shall not be granted for a trademark that is likely to disturb the public order or good customs. Here, the term "trademark that is likely to disrupt the public order or good customs" refers not only to the case where the composition of the trademark itself or the meaning or contents of the trademark being used for designated goods contravenes the public order or good customs, which is the ordinary moral sense of the general public, but also to the case where the use of the trademark violates good customs, such as fair goods distribution order or international trust and morality (see Supreme Court Decision 97Hu860, 877, 884, Apr. 21, 200, etc.). In addition, if the use of the trademark is detrimental to the public interest of the society, it shall not be permitted as it violates the public order and order.

In light of the above legal principles and the records, the prior meaning of the word “us”, which constitutes part of the registered service mark of this case, has already been seen in the judgment on the Defendant’s grounds of appeal. This word is an essential word to the general public to the extent that the use of the word is restricted or its meaning is confused with its meaning, such as “us company”, “us Dongdong,” etc., and it is widely frequently and widely used in ordinary daily life (in the case of referring to ’Na’), and it is not used only in a limited area, but also in a certain area without any restriction on the subject, location, field, ideology, etc., and it is the most universal and basic personal name in our language, and if it is confused with its meaning, it is essential to the general public to the extent that universal daily life is hindered. Accordingly, it is reasonable to view that any person is free to use the word without any restriction, and that it belongs to the general public’s personal interest and without any restriction on its function and proportion in the daily life as seen above.

However, “Korea bank” (hereinafter “Korea bank”) which is the registered service mark of this case (hereinafter “service mark bank”) is almost identical to “Korea bank” (hereinafter “Korea”) which represents one’s own bank, and its appearance is difficult to distinguish them by itself, and its usage is also used in a similar situation. In many cases, if the above two terms are mixed, it cannot avoid confusion as to which the term “the service mark bank” refers to one of the ordinary service marks banks, and in order not to cause such confusion, it is necessary to add a separate additional explanation or use the word “Korea” instead of the word “Korea.” In particular, it appears that the number of persons engaged in the same type of business would be significantly hindered in performing their duties because such inconvenience and restriction would be aggravated. As a result, it would interfere with the free use of the word “Korea,” and thus would prejudice the public interest of the society as seen above, and thus would be contrary to the order of fair distribution of the service mark, and thus, it should be determined that the registered service mark falls under the category of service mark 1 of this case.

Nevertheless, the court below's dismissal of the plaintiffs' claim against "financial management business, financial analysis business, financial counsel business, financial information provision business, lease purchasing financing business, mortgage financing business, insurance agency business, securities investment consultation business, home banking business" among the designated service business of the registered service mark of this case, deeming that the registered service mark of this case does not fall under Article 7 (1) 4 of the former Trademark Act, is erroneous in the misunderstanding of legal principles as to Article 7 (1) 4 of the former Trademark Act, which affected the conclusion of the judgment, and the plaintiffs' ground of appeal pointing this out has merit.

3. Conclusion

Therefore, all of the defendant's appeals are dismissed, and without further review of the plaintiffs' remaining grounds of appeal, the part against the plaintiffs among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)