[1] The meaning of "interested person" under Article 73 (6) of the Trademark Act

[2] Where Company A filed a claim against Company B, who is a trademark right holder of the registered trademark “”, and the Korean Intellectual Property Tribunal rejected the said request for a trial on the grounds that the Plaintiff was not an interested party, the case holding that Company A is a person who has a direct and realistic interest in the extinguishment of the registered trademark as it is objectively obvious that the possibility to oppose the above registered trademark is objectively apparent and should be affected by its legal status as it cannot be ruled out

[1] "Interested party" under Article 73 (1) 3 of the Trademark Act refers to a person who has a direct and realistic interest in the extinguishment of the registered trademark, as it is objectively obvious that the existence of the registered trademark to be revoked may result in damage because the trademark is set up against the trademark right holder due to the impossibility of using the trademark identical or similar to the registered trademark, or is objectively affected by the legal status of the trademark.

[2] Where Company A filed a claim for the cancellation of registration of the above registered trademark " " with the Intellectual Property Tribunal against Company B, who is the trademark right holder of the registered trademark " "," and the Intellectual Property Tribunal rendered a ruling dismissing the above registered trademark on the ground that the trademark is not an interested party, the case holding that where Company A used the above registered trademark on the ground that not only the designated goods of the above registered trademark but also the hamer's "hamer" and the scam produced by Company A, among the designated goods of the above registered trademark, the trademarks owned by Company A, but also the part of the designated goods of the "Sclvel" and the "Mlvel", which are part of the designated goods of the "Mlvel" and "Mlvel", which are the trademarks owned by the Company A, are the adultery, and the consumers, producers, and distribution channels, etc. are different and are closely related to each other, and where the above registered trademark is used in hamer, etc., both general consumers and traders are identical to the above registered trademark and are objectively likely to be confused with Company A.

[1] Article 73 (1) 3 and (6) of the Trademark Act / [2] Article 73 (1) 3 and (6) of the Trademark Act

[1] Supreme Court Decision 2001Hu188 decided Apr. 24, 2001 (Gong2001Sang, 1278)

Lawing System and Stock Company (Korean Patent Attorney Han Tae-chul et al., Counsel for the defendant-appellant)

Neglected Food Co., Ltd. (Patent Attorney Kim Jung-soo, Counsel for defendant-appellant)

May 28, 2010

1. The decision made by the Intellectual Property Tribunal on January 27, 2010 on the case No. 2009Da1706 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The registered trademark of this case

(1) Marks:

(2) Date of application/registration date/Renewal registration date/Renewal registration date/registration number: February 15, 1988/ June 29, 1989/ November 30, 2009/No. 1737399

(3) Trademark right holder: Defendant;

(4) Designated goods: “Badas, sac, sac, hambs, saves, sacabs, sabs, etc.” classified by category of goods.

B. Details of the instant trial decision

On July 16, 2009, the Plaintiff filed a petition with the Intellectual Property Tribunal for a trial to revoke the registration of the instant registered trademark, claiming that the Defendant, the holder of the right, had not used the instant registered trademark in Korea for at least three consecutive years prior to the date of the instant petition for revocation on the designated goods. Accordingly, the Intellectual Property Tribunal deliberated the instant petition for a trial with No. 2009Da1706, Jan. 27, 2010, and rejected the Plaintiff’s petition for a trial on the ground that the Plaintiff had no direct and real interests in the extinguishment of the instant registered trademark.

[Reasons for Recognition] Evidence Nos. 1 and 2, and the purport of the whole pleading

2. Whether the trial decision of this case is legitimate

With respect to the Plaintiff’s assertion that the instant trial decision, which was determined otherwise, was unlawful despite having a direct and realistic interest in the extinguishment of the instant registered trademark, the Defendant did not have an interest in the extinguishment of the instant registered trademark, and thus, the instant trial decision was lawful. Therefore, we examine whether the Plaintiff constitutes an interested party in the instant request for revocation.

A. Criteria for determination

"Interested party" under Article 73 (1) 3 of the Trademark Act refers to a person who has a direct and realistic interest in the extinguishment of the registered trademark because it is objectively obvious that the existence of the registered trademark to be revoked would result in damage because the trademark right holder's opposition against the trademark right is unable to use the trademark identical or similar to the registered trademark due to the impossibility of using the trademark which is identical or similar to the registered trademark due to the existence of the registered trademark (see Supreme Court Decision 2001Hu188, Apr. 24, 2001).

B. Facts of recognition

(1) The Plaintiff (i) manufactures, processes, sales, and import-sale business of food, (ii) manufactures and sells dairy and milk products, (iii) restaurants and other service business, and (iv) manufactures fruits, ices, etc. from April 3, 1967, which are incorporated for the purpose of processing, processing, and selling agricultural and fishery products.

(2) On the other hand, Defendant also is a stock company established for the purpose of carrying on food manufacturing business, such as the production of foods.

(3) In around 1989, the Plaintiff registered the trademark (trademark registration number: No. 179068) as “Slick, ice cream, food cream, etc.” as the designated goods, and around 2004, the Plaintiff registered the trademark (trademark registration number: No. 58746) as “Slick, knick, knick, knick, knick, etc.” as the designated goods.

(4) From around 1991 to around 2007, the Plaintiff used the trademark "Moninl" or "Monl" on the related products, and continuously advertised such as paying advertising expenses exceeding a total of 6.5 billion won between 2000 to 2007. From around 2001 to 2009, the Plaintiff sold related products.

[Reasons for Recognition] Evidence Nos. 3, 4-1, 2, 9-1 through 9, 10-1 through 7, 11, and the purport of the whole pleadings

C. Determination

According to the above facts, although the plaintiff does not produce the designated goods of the registered trademark of this case at the time of the decision of this case, general consumers or traders are using trademarks similar to the registered trademark of this case, and if the registered trademark of this case is used in hambus, etc., it is obvious that general consumers or traders are identical business operators with the above hambus and saco, etc., produced by the plaintiff, as well as the trademarks owned by the plaintiff, and part of the designated goods of the "Yondom" and "Yondom" as part of the designated goods of the "Yondom" and "Yondom", which are the trademarks owned by the plaintiff, and they do not differ in their consumers, producers, distribution channels, etc., and thus they are closely related to each other. Therefore, if the registered trademark of this case is used in hambus or Kabusbus, etc., it is obvious that the plaintiff and the defendant are in competition with food business operators manufacturing the above hambus and sacos, etc., and they are objectively affected by law.

D. Sub-committee

Since the plaintiff constitutes an interested party who can request a cancellation of registration of the registered trademark of this case, the decision of this case which dismissed the plaintiff's above request is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Kim Yong-con (Presiding Judge) and Kim Jong-il (Presiding Judge)