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1. The decision made by the Intellectual Property Tribunal on January 23, 2017 by the Intellectual Property Tribunal on the case shall be revoked.
2. The costs of the lawsuit are assessed against the defendant.
Reasons
1. Basic facts
가. 이 사건 등록서비스표(갑 제2호증) (1) 출원일/ 등록결정일/ 등록일/ 등록번호 : C/ 2015. 8. 26./ D/ 서비스표등록 E (2) 표장 : (3) 지정서비스업 : 서비스업류 구분 제43류의 일본음식점업, 일반음식점업, 식당체인업, 음식준비조달업, 휴게실업, 간이식당업, 레스토랑업, 바(bar)서비스업, 뷔페식당업, 서양음식점업, 셀프서비스식당업, 스낵바업, 항공기기내식제공업, 관광숙박업, 칵테일라운지서비스업, 패스트푸드식당업, 한식점업, 카페테리아업 (4) 등록권리자 : 피고
(b) A prior registered service mark (A) (10 No. 10 No. 1)/ registration date/registration number: F/ G/ service mark registration H (2): (3) designated service business: A business operator specializing in reference to class 43 of the service industry classification (referring to a business using the observer caught in the Do inshore) and a simple restaurant business specializing in reference (a business using the observer caught in the Do inshore) (4). The plaintiff
(c) A mark: (1) A service business mark: (2) A service business: a Reference restaurant chain business referred to in Chapter 43 classified by service business; and a user of an exclusive restaurant business; (3) a plaintiff;
D. (1) On October 15, 2015, the Plaintiff asserted to the Intellectual Property Tribunal that “The instant registered service mark is similar to the prior registered service mark, and thus constitutes Article 7(1)7 of the former Trademark Act (amended by Act No. 14033, Feb. 29, 2016; hereinafter the same). In addition, the instant registered service mark constitutes a service mark similar to the prior registered service mark widely known in Korea, which falls under Article 7(1)9, 10, 11, and 12 of the former Trademark Act.” The Plaintiff filed for a registration invalidation trial (hereinafter referred to as “2015Da4916”) on the instant registered service mark.
(2) On January 23, 2017, the Korean Intellectual Property Trial and Appeal Board held that the part of the trademark of the instant registered service mark and the prior registered service mark is not an essential part because it has no distinctive character.