Revocation of provisional disposition taken due to changes in circumstances and effect of cancellation of trademark rights;

If the trademark right is cancelled, it shall lose its effect in the future from that time, and if it is cancelled by a trial decision, it shall lose its effect in the future after the trial decision becomes conclusive.

Article 28 of the former Trademark Act, Article 62 (3) of the Patent Act

Korea Incorporated Co., Ltd.

Consideration is a short-term pharmaceutical corporation

Seoul High Court Decision 65Na2900 delivered on April 7, 1967

The appeal is dismissed.

The costs of appeal shall be borne by the applicant.

1. Determination on the first ground of appeal as to the replacement of the applicant’s agent

According to each description of evidence Nos. 3 and 4 (Registration No. 1 omitted) of the lawsuit, the reason why the provisional disposition prohibiting the use of the applicant's trademark, etc. is likely to infringe the respondent's right (registration No. 1 omitted) and each trademark of the associated trademark (registration No. 2 omitted) and (registration No. 3 omitted). Accordingly, by the Supreme Court decision, the respondent's trademark registration becomes null and void, (registration No. 4 omitted), and (registration No. 1 omitted) was revoked in the appeal against the patent state, and the trademark registration is not revoked because the decision has not been maintained by the Supreme Court, and it cannot be said that it does not necessarily mean that the trademark of the applicant is permitted to exist together with the trademark of the said (registration No. 1 omitted) and the above (registration No. 1 omitted) trademark. Accordingly, it cannot be the reason for applying for the revocation of the provisional disposition due to the change of circumstances. Thus, the argument that the original judgment did not explicitly state the objection of the applicant, and it cannot be justified.

2. Determination as to the ground of appeal No. 1 on the present agent allocation, such as the ground of appeal No. 2 by the same agent replacement.

The application for provisional disposition was filed on the ground that (registration No. 4 omitted) trademark registration of the respondent, the right to be preserved, becomes null and void after the decision of provisional disposition was rendered, and trademark registration (registration No. 1 omitted) is registered on the ground that there was a change of circumstances that could not maintain the provisional disposition, so it is sufficient to determine whether the original judgment has changed or not, and the applicant is sufficient to determine whether there is a change of circumstances, and on the ground that the contract exists between the petitioner of April 17, 1961 and the respondent of the previous 1961 when the decision of provisional disposition was made, it is obvious in a single record that the original judgment did not assert the change of circumstances, and therefore, it is obvious that the original judgment was revoked as a significant fact with the party member, even if there was a mistake as to the family theory, it does not affect the judgment, and therefore, it is not reasonable to hold it without merit.

3. Determination as to the third ground for appeal by the same representative replacement.

According to each statement of the evidence Nos. 2 and 3 (the judgment authorizing the provisional disposition of this case), the reason why the decision on the provisional disposition of this case was approved is not only limited to the infringement and preservation of trademark rights by the respondent (registration No. 4 omitted), but also to the effect that each trademark right is limited to (registration No. 1 omitted), and (registration No. 3 omitted). Thus, the original judgment with the same purport is just, and it is groundless.

4. Determination as to the grounds of appeal Nos. 4 and 2 and 3 of the present representation allocation (including the grounds of appeal on the present representation and the additional grounds of appeal on the Korean exchange of the same representative)

This case's provisional disposition is as above, since the respondent's registered trademark (registration No. 1 omitted), (registration No. 4 omitted), and (registration No. 3 omitted), the trademark is to preserve each trademark right (registration No. 4 omitted), and then (registration No. 4 omitted), even if the trademark registration becomes null and void, according to the original judgment's established decision, the trademark (registration No. 1 omitted), which is the right to be preserved for the case's provisional disposition, remains valid, and (registration No. 3 omitted) among those (registration No. 1 omitted), even if there was a decision of revocation in a patent state's appeal as to the trademark (registration No. 1 omitted), it does not become final and conclusive as the trademark is still pending in the court of final appeal at the time of the completion of the argument at the court below's trial. Accordingly, if the trademark right is revoked by a trial decision under Article 62 (3) of the Patent Act as applied mutatis mutandis pursuant to Article 28 of the Trademark Act, it becomes void in the future, and it does not lose its effect in the future.

In addition, even though the decision of revocation by the Patent Tribunal's appeal on the trademark (registration No. 1 omitted) after the original judgment was rendered, it is not only the fact after the conclusion of pleadings in the original judgment, but also the validity of the revocation as seen above is not retroactive, and even if there are grounds for revocation like the theory on the trademark (registration No. 3 omitted), it remains effective until the cancellation becomes final and conclusive by the trial decision. Thus, it is clear that the theory does not constitute change of circumstances for the revocation of the provisional disposition on the ground as seen above, and therefore, all of the arguments are without merit.

5. The appeal is without merit. The costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Supreme Court Judge Kimchim (Presiding Judge)