[1] The meaning of an interested party in a request for cancellation of trademark registration

[2] The case holding that a trademark cancellation petition is not an interested party

[1] In a request for cancellation of a trademark registration, an interested party means a person who has a direct and realistic interest in the extinguishment of the trademark, as it is likely that the trademark right may not be used with the trademark identical or similar to the registered trademark due to the existence of the trademark registration to be cancelled, and thus, is likely to be damaged.

[2] The case holding that a trademark cancellation petition is not an interested party

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

[1] Supreme Court Decision 95Hu1555 delivered on April 26, 1996 (Gong1996Sang, 1731), Supreme Court Decision 96Hu2326 delivered on October 24, 1997 (Gong1997Ha, 3650), Supreme Court Decision 97Hu1115 delivered on March 27, 1998 (Gong198Sang, 1203)

Africa Sidehiona Shaki (Law Firm Agra, Attorneys Ba-hyeong et al., Counsel for the plaintiff-appellant-appellant)

Apia Co., Ltd.

Korean Intellectual Property Tribunal Decision 94DaDa411 dated May 30, 1997

The appeal is dismissed. All costs of appeal are assessed against the claimant.

The grounds of appeal are examined.

In a request for the cancellation of trademark registration, an interested person means a person who has a direct and real interest in the extinguishment of a trademark, inasmuch as the existence of the trademark registration to be cancelled is likely to be damaged by being unable to use the trademark identical with or similar to the registered trademark by being contested by the owner of the trademark right (see, e.g., Supreme Court Decisions 96Hu2326, Oct. 24, 1997; 97Hu115, Mar. 27, 1998).

According to the records, no evidence exists to deem that the claimant used a mark identical or similar to the registered service mark of this case on the service business or goods identical or similar to the designated service business of this case, and it may be deemed that the trademark of this case which is similar to the registered service mark of this case was widely known domestically. However, its well-knownness does not necessarily necessarily lead to the stage of the well-known trademark. In addition, it cannot be deemed that there was a relation of competition or economic relationship between the baby car, etc. which is the designated goods of the above trademark, and Lestop and food business, which is the designated service business of the registered service mark of this case. Thus, barring any special circumstance, even if the registered service mark of this case continues to exist, it cannot be deemed that the claimant might be subject to the defense of the right to oppose the registered service mark of this case, and it cannot be deemed that there is a direct and real interest in the extinguishment of the registered service mark of this case.

In addition, the registration of the instant registered service mark itself cannot be deemed an unfair competitive act in relation to a claimant. Thus, there is no room to acknowledge interest in prohibiting it on the premise that such act of unfair competitive act is established. Meanwhile, even if a claimant filed a lawsuit against the respondent for a trial regarding the use of a mark similar to a claimant's trademark on the part of the claimant, etc. on the part of the claimant, even if the claimant for a trial partly won the case, such circumstance alone does not lead to an interest in the extinguishment of the registered service mark of this case, which is not related to the loss of the claimant.

Although the reasoning of the court below did not contain any inadequate points, the conclusion of the court below's decision denying the interests of the claimant is justified, and there is no error in the misapprehension of legal principles as to the interests as otherwise alleged in the ground of appeal.

The grounds of appeal cannot be accepted.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)