A. Whether the party's right of disposition is applied to a claim to confirm the scope of right under the Trademark Act (affirmative)

B. (A) With respect to a trial to confirm a passive claim that the mark does not fall under the scope of the right of the registered trademark, whether it is possible to render an affirmative trial to confirm if the mark falls under the scope of the right of the registered trademark (negative)

A. The party's right of disposition under the Civil Procedure Act should be applied to a claim to confirm the scope of right under the Trademark Act.

(b)Where a request for a confirmation of the scope of a right is filed with a passive trial that the mark (a) does not fall under the scope of the right of the registered trademark, if the mark (a) is deemed to fall under the scope of the right of the registered trademark, the adjudication that the mark (a) falls under the scope of the right of the registered trademark shall be dismissed

Article 43(1)3 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990); Article 188 of the Civil Procedure Act

Supreme Court Decision 67Hu17 Decided September 5, 1967 (No. 15(3) Decided September 19, 1967)

Attorney Tae Chang-chul et al., Counsel for the defendant-appellant

Attorney Ba-yang et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 489 dated December 26, 1991

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal ex officio prior to judgment.

In order to confirm the scope of rights under the Trademark Act, the principle of disposition by the party under the Civil Procedure Act should be applied (see Supreme Court Decision 67Hu17 delivered on September 5, 1967; Supreme Court Decision 67Hu16 delivered on September 19, 1967).

According to the records, the claim for the confirmation of the scope of right of the trademark of this case is the petitioner for the passive confirmation trial that the mark (A) does not fall under the scope of the right of the trademark of this case where the mark (A) falls under the scope of the trademark of this case, and if the mark (a) does not fall under the scope of the right of the trademark of this case in the initial adjudication, and thus the appeal is accepted, if the mark (a) does not fall under the scope of the right of the trademark of this case, the appeal decision would be dismissed, and (a) the mark (a) falls under the scope of the right of the trademark of this case, and it is not possible to make a trial decision that the mark (a) falls under the scope of the right of the trademark of this case. The same applies to the first adjudication that cited the appeal by this legal principle.

Nevertheless, it cannot be said that there was no illegality in the judgment of the claimant's rejection or rejection of the claim by the claimant in light of the above legal principles, which made a trial decision that the mark (A) falls under the scope of the right of the trademark of this case in the text of the original trial decision, and that the original trial decision cannot be maintained as it is.

Therefore, without further proceeding to decide on the grounds of appeal, the decision of the court below is reversed ex officio, and the case is remanded to the Korean Intellectual Property Tribunal. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Jong-ho (Presiding Justice)