Where a decision of revocation of trademark registration due to non-use of the applicant’s registered trademark which is similar to the applied trademark after the application for trademark registration becomes final and conclusive, the registration price of the applied trademark (negative)

The provisions of Article 9(5) of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990) that a trademark right holder cannot obtain registration of a trademark identical with or similar to the extinguished registered trademark unless three years have passed since the decision of revocation becomes final and conclusive on the trademark registration by non-use (amended by Act No. 4210, Jan. 13, 1990) applies not only to the case where the decision of revocation becomes final and conclusive but also to the case where the trademark was already filed before the final and conclusive decision. Thus, even if the trademark applied for registration did not fall under the above provisions at the time of the application, it shall

Articles 9(5) and 45(1)3 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant-appellee)

Oral gram Co., Ltd.

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision No. 58 dated November 30, 1989

The appeal is dismissed.

The costs of appeal shall be assessed against the applicant.

We examine the grounds of appeal.

According to the reasoning of the original decision, the court below rejected a request for a trial on the ground that the applicant filed an application on January 17, 1985, but filed an application for conversion of the trademark registration number under the same applicant’s name into a combined trademark under Article 78192 (hereinafter “basic trademark”) on November 20, 198, and the Korean Intellectual Property Office rendered a ruling of rejection on the ground that the registration of the trademark of this case is likely to mislead consumers as to the source, but the appeal was also dismissed on the ground that the trademark of this case was likely to mislead consumers as to the source, but the appeal is also dismissed on the ground that there is a concern that the trademark of this case may cause confusion as to the source and quality of the goods, and the above basic trademark of this case, which was pending in the Korean Intellectual Property Office, cannot be revoked within 3 years prior to the cancellation of the trademark registration under Article 45(1)3 (1) of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990).

Article 9(5) of the former Trademark Act provides that a trademark right holder cannot obtain registration of a trademark identical or similar to the extinguished registered trademark unless three years have passed since the decision of revocation of trademark registration became final and conclusive on the ground that the trademark falls under Article 45(1)3 (unusedd Trademark) of the same Act. This provision applies not only to the case where a new decision of revocation becomes final and conclusive, but also to the case where a previous application was filed before the decision of revocation becomes final and conclusive (see Supreme Court Decision 89Hu2182 delivered on April 10, 1990). Thus, even if a trademark does not fall under the above provision at the time of the application, if it falls under the above provision at the time of registration (at the time of rejection) and the decision of the court below is just and there is no error of law by misunderstanding the legal principles of Article 9(5) of the former Trademark Act or by misunderstanding the legal principles of a judgment, and therefore, there is no ground for appeal.

In addition, the argument that the application of Article 9 (5) of the former Trademark Act should be excluded in a case where a trademark is revoked by non-use (Article 45 (1) 3 of the former Trademark Act), such as a novel, is an exclusive interpretation contrary to the express provision, and therefore there is no reason to discuss it.

Therefore, the appeal is 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 Lee Chang-chul (Presiding Justice)