Whether a request for revocation is legitimate, where a cause for revocation under Article 73 (1) 1 of the Trademark Act is cured before a request for revocation is filed.

If the respondent uses the registered service mark to another person for at least six months without the registration of the establishment of the right to use the registered service mark, which constitutes grounds for revocation under Article 73 (1) 1 of the Trademark Act, even if the registration of the establishment of the right has already been made before the request for adjudication, the request for adjudication on cancellation for

Article 73(1)1 of the Trademark Act, Articles 73(5) and 76(2) of the Trademark Act

Patent Attorney Lee Young-young, Counsel for defendant-appellant

Patent Attorney Kim-sub et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 92Hun-Ba372 dated December 26, 1994

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

According to Articles 73(1)1 and 76(2) of the Trademark Act, where a trademark right holder has allowed another person to use a trademark identical or similar to his/her registered trademark on goods identical or similar to the designated goods without registering the establishment of an exclusive license or a non-exclusive license, for not less than six months, a trial for revocation of the registered trademark may not be requested after the lapse of three years from the date on which the facts constituting the grounds for revocation cease to exist. Meanwhile, according to Article 73(5) of the Trademark Act, even if the facts constituting the grounds for revocation have ceased to exist after requesting a trial for revocation on the grounds of falling under subparagraph 1 of Article 73(1)1 of the Trademark Act, it shall not affect the grounds for revocation. In light of the legislative intent of the above provisions, Article 73(5) of the Trademark Act is merely a provision to prevent the revocation of the system by correcting the defects causing the revocation after the request for revocation is made after the request for revocation.

In light of the records, in the case of this case where the respondent had another person use the registered service mark for not less than six months without the registration of establishment of right to use, which constitutes the ground for revocation under Article 73 (1) 1 of the Trademark Act, even if the right to use was already registered before the request for adjudication, the request for adjudication of this case is justifiable, and the decision of the court below to that purport is just, and there is no error of law by misunderstanding the legal principles as to the cancellation of trademark, such as the theory of lawsuit, or failing to exhaust all necessary deliberations.

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 on the bench.

Justices Lee Yong-hun (Presiding Justice)