(a) Where an invalidation trial to renew the duration of trademark rights becomes final and conclusive, the timing of extinguishment of the previous trademark rights;

(b) The case holding that there should be no similar trademark to the applied trademark because the trademark right for the cited trademark whose trademark had been registered at the time of the application for the trademark registration becomes final and conclusive later as a decision to invalidate the registration of renewal of the duration, and the trademark should have been retroactively extinguished before the application for the trademark registration

A. In light of Articles 47 and 48(3) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), when a trial decision or ruling invalidating the renewal of the duration of a trademark right becomes final and conclusive, the trademark right arising from the registration of establishment shall be deemed extinguished at the time the duration of the trademark right before its renewal expires.

B. The case holding that there should be no prior-registration trademark for the applied trademark since the trademark right for the cited trademark whose trademark had been registered at the time of the application for the trademark registration became final and conclusive later as a decision to invalidate the renewal of the duration of the trademark, and the trademark should have been retroactively extinguished prior to the application for the trademark registration.

A. Articles 47 and 48(3) of the former Trademark Act; Article 7(1)7 of the Trademark Act; Article 9(1)7 of the former Trademark Act

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

Attorney Kim Jong-tae et al., Counsel for the defendant-appellant-appellee and one other, Counsel for the plaintiff-appellant-appellant-appellee)

The Commissioner of the Korean Intellectual Property Office

The appellant of the Korean Intellectual Property Office on November 30, 1993

The original adjudication shall be reversed.

The case shall be remanded to the Korean Intellectual Property Office Appeal Office.

The first ground for appeal of the applicant's attorney is examined.

The court below affirmed the decision of the court below that the trademark constitutes a trademark which cannot be registered under Article 7 (1) 7 of the Trademark Act, since the applicant applied for December 31, 1990 and applied for trademark registration of June 4, 1992 and the trademark which was registered for the first time on September 4, 1979 and registered for the first time on July 23, 199, "the trademark of another person by an earlier application" which was registered for the renewal of the duration of trademark registration of July 23, 1990, because both trademarks are similar to the designated goods and may cause confusion as to the origin of goods if they are used for the designated goods, and therefore, the trademark is not registered under Article 7 (1) 7 of the Trademark Act, and the issue of whether the trademark applied for registration falls under Article 7 (1) 7 of the Trademark Act shall be determined at the time of the application for trademark registration. Thus, even if the trademark registration of the original trademark is invalidated on December 2, 1992, the trademark registration of the original trademark shall be invalidated.

However, according to Articles 47 and 48(3) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), where a trademark right duration renewal falls under the grounds for invalidation as prescribed in each subparagraph of Article 47, such renewal shall be invalidated by a trial regardless of whether the trademark right is extinguished or not, and where a trial decision or judgment becomes final and conclusive that a trademark right duration renewal renewal registration shall be invalidated, the trademark right duration renewal registration shall be deemed not to have existed from the beginning. In such a case, trademark right arising from the establishment registration shall be deemed to be extinguished at the time of termination of the trademark right before the renewal registration. According to the records, the trademark right holder of the cited trademark shall be deemed to have expired at the time of the expiration of the trademark right before the renewal registration, on the ground that the trademark right holder did not use the trademark for any designated goods in Korea within three years before the application for the renewal registration of the trademark right duration renewal is finalized on November 18, 192. The trademark right of cited trademark is retroactively extinguished from September 4, 1989.

Therefore, the cited trademark at the time of the application for trademark registration of December 31, 1990 is bound to be deemed to have not existed as the " another person's registered trademark by an earlier application" and the original trademark cannot be deemed to be a trademark that cannot obtain trademark registration of a small term under Article 9 (1) 7 of the former Trademark Act (Article 7 (1) 7 of the current Trademark Act).

Therefore, there is an error of misunderstanding the legal principles as to the retroactive effect of a trial decision on the invalidation of trademark duration renewal registration under Article 9 (1) 7 of the former Trademark Act, and it is clear that such an error has an effect on a trial decision. Therefore, there is a reason to point this out.

Therefore, without deciding on the remaining grounds of appeal No. 2, the case shall be reversed and remanded to the Korean Intellectual Property Office for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)