[1] The meaning of an interested person who can request a trial to revoke trademark registration

[2] The case holding that the manufacturer of the same product is an interested party in the request for cancellation of trademark registration

[3] Whether the use of a trademark within the preceding three years is presumed from the time of application for renewal of the trademark registration where the renewal of the duration of the trademark right was made at the time of enforcement of the former Trademark Act

[4] The case holding that the presumption of use of a trademark was reversed due to the renewal of duration of the registered trademark

[5] Whether cancellation constitutes a case where the period of non-use was not met at the time of a request for cancellation, but the period has been completed during the trial

[1] An interested party in a request for the cancellation of trademark registration refers to a person who has a direct and realistic interest in the extinguishment of trademark because the existence of the trademark registration to be cancelled is against the trademark right holder and is unable to use the trademark identical or similar to the registered trademark and thus is likely to be damaged.

[2] The case holding that the manufacturer of the same product is an interested party in the request for cancellation of trademark registration

[3] Article 42 (2) 2 of the former Trademark Act (amended by Act No. 4597 of Dec. 10, 1993) which applies to the registration for renewal of the duration of a trademark right provides that the trademark shall not be used within 3 years from the time of renewal of the duration of the trademark right shall be the ground for refusal of renewal. Article 43 (1) 3 of the same Act provides that a document stating matters not falling under the above case shall be submitted at the time of renewal of the registration. Thus, if the registration for renewal of the duration of the trademark right has been filed, the fact of use of the trademark shall be presumed within 3 years from the time of

[4] The case holding that since there is no record of prior quality inspection or application under Article 6 of the Quality Control of Industrial Products Act, it is reasonable to see that the presumption of use due to the renewal of the term of the registered trademark has been broken, the registered trademark has not been used for not less than three years prior to the time of a request for revocation trial, unless there is no data from the date following the application for renewal of the term of the registered trademark to the date of request

[5] Until the completion of the deliberation of the original decision, it is difficult to avoid the revocation of the use of a trademark, since the applicant for trademark registration, who is the applicant for trademark registration, does not submit any data about the use of the trademark until the deliberation of the original decision, and there is no evidence to acknowledge it differently, and there is no evidence to prove that there is any justifiable reason for the non-use.

[1] Article 73(6) of the Trademark Act / [2] Article 73(6) of the Trademark Act / [3] Article 73(1)3 of the Trademark Act, Articles 42(2)2 and 43(1)3 of the former Trademark Act (amended by Act No. 4597 of Dec. 10, 1993) / [4] Article 73(1)3 of the Trademark Act, Articles 42(2)2 and 43(1)3 of the former Trademark Act (amended by Act No. 4597 of Dec. 10, 1993) / [5] Article 73(1)3 of the Trademark Act

[1] Supreme Court Decision 86Hu78, 79, 80 decided Oct. 26, 1987 (Gong1987, 1795), Supreme Court Decision 88Hu1519 decided Oct. 10, 198 (Gong1989, 167), Supreme Court Decision 88Hu1328 decided Jan. 25, 1990 (Gong1990, 535), Supreme Court Decision 90Hu287 decided May 14, 1991 (Gong1991, 1646), Supreme Court Decision 92Hu162, 179 decided Jul. 28, 192 (Gong1992, 268), Supreme Court Decision 93Hu9397 decided Sep. 19, 193 (Gong1993, 2947 decided Sept. 193, 194)

Claimant (Patent Attorney Kim Jae-chul et al., Counsel for the plaintiff-appellant)

Udong Enterprise Co., Ltd. and one other (Patent Attorney Park Tae-tae, Counsel for the defendant-appellant)

Korean Intellectual Property Office Decision 92Hun-Ba353 dated April 7, 1995

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

We examine the grounds of appeal.

On the first ground for appeal

An interested party in a request for the cancellation of trademark registration means a person who has a direct and real interest in the extinguishment of a trademark because the existence of the trademark registration to be cancelled is likely to result in damage because the trademark right is set up against the owner of the trademark right and the trademark identical or similar to the registered trademark is unusable (see, e.g., Supreme Court Decisions 86Hu78, 79, 80, Oct. 26, 1987; 88Hu1519, Oct. 10, 1989).

According to the statements in Gap evidence Nos. 4 (Co. 4 and Gap evidence Nos. 5 (Business Registration Certificate Copy) of the claimant's submission, the claimant is engaged in the manufacturing industry of Bohnam Industrial Complex from August 1, 1984 to "Senam Industrial Complex", and Bohion Disease, which is the designated goods of the trademark of this case, belongs to category No. 18 of the product classification. Although the product group is manufactured to be in a progress between the internal passage and the outer passage with the material of the Switzerland, and the manufacturing equipment is identical and the use of the product is different, and the product is common, its consumer or trader is also common, and as long as the claimant has used a trademark similar to the registered trademark as a person engaged in the manufacturing industry of the same product, it can be said that there is a direct and realistic interest in the extinguishment of the registered trademark as to Bohnam Industrial Complex.

The judgment of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to the existence of interests in a request for adjudication such as a theory of lawsuit, incomplete hearing, or omission of judgment.

The issue is that the court below's finding it an interested person as an application for additional registration of the designated goods solely on the ground that the claimant is a person who intends to additionally register the designated goods of the same kind as the designated goods of the registered trademark. However, the court below does not recognize an interest solely on the above facts, but recognizes it as an interested person on the premise that the applicant is a person who manufactures the same kind of goods. Therefore, the argument of the theory of lawsuit is difficult to accept, and the case of a party

There is no reason to discuss this issue.

On the second ground for appeal

Article 42 (2) 2 of the former Trademark Act (amended by Act No. 4597 of Dec. 10, 1993) which applies to this case with respect to the renewal of the duration of a trademark right provides that the trademark shall not be used within three years from the time of renewal of the duration of the trademark right shall be the ground for refusal of renewal. Article 43 (1) 3 of the same Act provides that the applicant shall submit documents proving that the trademark does not fall under the case at the time of renewal of the registration. Thus, if the renewal of the duration of the trademark right is made, it is presumed that the use of the trademark shall be presumed within three years prior to the time of renewal of the registration (see, e.g., Supreme Court Decisions 92Hu1578, Apr. 9, 193; 93Hu4599, Oct. 22, 1993). It is presumed that the applicant for a trial in this case shall have satisfied the period prior to July 3, 1990.

However, according to the response (Evidence No. 3) to the inspection of quality of Bododol's disease to the President of the Korean Chemical Testing and Inspection Office bound in the record, it is reasonable to deem that Bodol's disease was a pre-inspection designated goods under Article 83-403 of the Industrial Promotion Agency notification of August 13, 1983, and can be sold after passing a quality inspection under the prior examination under Article 6 of the Quality Control of Industrial Products Act. However, as of April 13, 192, there was no prior quality inspection under the name of the respondent who is the trademark right holder as of April 13, 199, and as of July 4, 1990, it can be known that there was no result of prior quality inspection from January 1, 199 to April 30, 192. Thus, it is reasonable to deem that the presumption of use due to the renewal of the term of the registered trademark of this case was broken, and no prior application for the registration of this case was made until 3 years prior to July 19, 19.

Therefore, it is inappropriate for the court below to recognize the non-use of a trademark by the above evidence without determination as to the presumption of trademark use due to the renewal of the duration of the trademark of this case. However, even if it is difficult to see that the above presumption of the use of the trademark of this case was broken only by the fact of the recognition of the trademark of this case for three years prior to the filing date of the request for the cancellation of the cancellation trial of this case, it is difficult to avoid the cancellation of the use of the trademark of this case, since the respondent who is the trademark right holder of this case did not submit any data about the fact of the use of the trademark until April 6, 1995, which is the time when the decision of the court below is concluded, and there is no other evidence to acknowledge this differently, and unless there is no proof that there is a legitimate reason for the non-use, the non-use period of the trademark of this case has been completed during the original adjudication, so it is difficult to avoid the cancellation of the use of the trademark of this case (see Supreme Court Decision 8

Therefore, since the registered trademark of this case is not used, the decision of the court below that the registered trademark of this case constitutes grounds for revocation is justifiable, and there is no error of law such as incomplete deliberation or omission of judgment as to whether the registered trademark of this case is not used.

There is no reason for this issue.

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.

Justices Kim Jong-soo (Presiding Justice)