The defendant shall be innocent.

1. The summary of the facts charged is a person running “E” in Gangdong-gu Seoul Metropolitan Government D.

From August 30, 2013 to January 5, 2015, the Defendant used the name “E”, a trade name similar to the trade name of “E” in which the Victim Dokdo Island (Registration Number No. 41-026746) was registered with the Korean Intellectual Property Office as of August 29, 2013, and used as “E” in the above restaurant from August 30, 2013 to August 5, 2015.

Accordingly, the Defendant committed an infringement on service mark rights.

2. Since the service mark registered by the Defendant’s assertion on Dokdo Island, the service mark is invalid, the Defendant used a trade name similar to the above service mark.

Even a crime shall not be a crime.

3. Determination

(a) If a trademark is registered, there is a ground for invalidation of the registration;

Even if the registration is declared null and void by a trial, the right to the registered trademark is held as it is until it becomes final and conclusive.

If a trial decision to invalidate a trademark registration becomes final and conclusive, the trademark right shall be deemed never to have existed from the beginning, unlike when a trial decision to revoke the trademark registration becomes final and conclusive or when the trademark right is revoked (the same shall apply to the trademark before it was wholly amended by Act No. 14033, Feb. 29, 2016).

In light of Article 71(3) of the former Trademark Act (Article 420 subparag. 6 of the Criminal Procedure Act). Meanwhile, even if the act of infringing another person’s registered trademark right was conducted prior to the final and conclusive decision that the trademark registration should be invalidated, if the decision that the trademark registration be invalidated becomes final and conclusive, the trademark right that was infringed did not exist from the beginning. Thus, such act cannot be deemed as a trademark infringement under Article 93 of the former Trademark Act.