Whether the meaning of identical evidence under Article 51 of the Trademark Act and Article 147 of the Patent Act and whether it violates the principle of res judicata in a case where new evidence that may affect the trial decision is added (negative)

Article 51 of the Trademark Act and Article 147 of the Patent Act, which provide the principle of res judicata, include not only the same evidence as the evidence of the final and conclusive trial decision, but also the same evidence as that of the final and conclusive trial decision, and thus, it does not conflict with the principle of res judicata in cases where the cause of the claim is added not only the same evidence as the evidence of the final and conclusive trial decision but also the new evidence that can affect the conclusion of the trial decision.

Article 51 of the Trademark Act, Article 147 of the Patent Act

Supreme Court Decision 77Hu28 Decided March 28, 1978, Supreme Court Decision 86Hu107 Decided July 7, 1987, Supreme Court Decision 87Hu98,99,100 Decided May 23, 1989

Patent Attorney Lee Jin-jin, Counsel for the plaintiff-appellant

Patent Attorney Park Jae-soo, Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 210 Dated November 30, 1987

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The ground of appeal No. 1 by the claimant is examined.

1. The principle of res judicata under Article 51 of the Trademark Act and Article 147 of the Patent Act prohibits a trial by identical facts and evidence against a final and conclusive trial decision or ruling. Here, the same evidence includes not only the same evidence as the evidence of the final and conclusive trial decision, but also the addition of evidential evidence to the extent that it can reverse the final and conclusive trial decision (see Supreme Court Decision 87Hu28, Mar. 28, 197; Supreme Court Decision 86Hu107, Jul. 7, 1987).

Therefore, if the cause of the claim is added not only the same evidence as the evidence of the final and conclusive trial decision, but also new evidence that can affect the conclusion of the trial decision, it does not conflict with the principle of res judicata even if there is some same evidence.

2. According to the reasoning of the original trial decision, the Korean Intellectual Property Office’s appeal suit compared each of the evidence relations between the instant case and the instant case No. 6 of 1983 and the trial decision of 1983 and the instant case No. 6 of 1983 (the invalidation trial under Article 5034 of the Trademark Registration Act) and determined that the evidence No. 1 of this case is identical, and the evidence No. 4 through No. 6 of this case is identical with the evidence No. 3 of the previous trial, and the evidence No. 3 of this case is identical with the evidence No. 4 of the previous trial, and thus, the evidence No. 1 through No. 6 of this case is identical with the evidence No. 9 of the previous trial

However, according to the evidence Nos. 7 (Trial decision), in a previous case where a trial decision became final and conclusive, the claimant submitted evidence Nos. 1 through 4, and the respondent Nos. 1 through 9 respectively, and double evidence Nos. 3 is abstract of medicinal food production, and evidence Nos. 1 through 9 is abstract of medicinal food production, and evidence Nos. 1 through 9 can be known only to the extent that the evidence Nos. 10 and 1 through 9 are various advances and spamspamspamspamspamspamspamspamspamspamspamspamspamspamspamspamspams, so there is no evidence which is identical to each of the evidence of the previous case among evidence Nos. 1 through 12 and 13 submitted in this case, if other evidence is not known at all.

3. Ultimately, the original adjudication contains an error of law by which facts are confirmed without legitimate evidence, and it is reasonable to discuss this issue. Therefore, the original adjudication is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)