Where a trial is requested to revoke the registration of a trademark on several designated goods due to the non-use of a trademark, and the use of one of the designated goods is proved, the method of the trial and whether these legal principles are equally applied to service marks (affirmative)

Articles 2(3), 73(1)3, (3), and (4) of the Trademark Act

Supreme Court Decision 93Hu718, 725 (Consolidated) 732(Consolidated) 749(Gong1994Sang, 541) Decided December 28, 1993

Victosia Stop brand brand management (Law Firm Stopart et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Yellow-il, Counsel for defendant-appellant)

Patent Court Decision 201Heo4882 Decided September 22, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the plaintiff, who is the holder of the registered service mark (registration No. 15890) of this case, used the registered service mark of this case as legitimate use in Korea within three years prior to the date of the request for revocation of the judgment, within three years prior to the date of the request for revocation. There is no violation of law of free evaluation of evidence in violation of logical and empirical rules.

2. Regarding ground of appeal No. 2

Article 73(1)3 of the Trademark Act provides that a trial for revocation of trademark registration may be requested on the ground that the registered trademark has not been used in the Republic of Korea for not less than three years, and Article 73(3) provides that a trial for revocation of trademark registration may be requested on some designated goods if there are not less than two designated goods of the registered trademark at that time. Meanwhile, Article 73(4) provides that where a trial for revocation of trademark is requested on the ground that the registered trademark has not been used for not less than three years, the respondent shall not be exempted from the revocation of trademark registration on the designated goods related to the request for revocation unless the respondent proves that not less than one of the designated goods related to the request for revocation of trademark registration has been properly used in the Republic of Korea within three years before the date of the request for a trial for revocation, the trademark right holder shall not be exempted from the revocation of trademark registration on the designated goods related to the request for a trial for revocation. This legal doctrine applies to a trial for revocation of trademark registration on the whole designated goods by deeming it as one of the designated goods subject to the request for a trial.

According to the above legal principles and records, the court below is just in holding that the judgment of this case cannot be accepted as a whole as a result of proving the use of the "fashion information provision business" under the Chapter 42, one of the designated service businesses, as a whole, by treating all designated service businesses of the category 36 and 42, which are the service businesses subject to a request for revocation of the registered service mark of this case, as an indivisible unit. There is no error in the omission of judgment as to whether to use the service mark under the Article 73 (1) 3, (3), and (4) of the Trademark Act as otherwise alleged in

3. Conclusion

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 Jeon Soo-ahn (Presiding Justice)