A. Whether transferring a business body, including trademark rights, constitutes “an inheritance or other general succession” under Article 27(6) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (negative)

(b) The case holding that Article 45 (1) 1 of the former Trademark Act cannot be seen as a case where the transferee company uses the trademark in advance 20 days prior to the transfer of the trademark in the process that the trademark right holder transfers the trademark right to the company under his representative and takes procedures for the transfer of the trademark right within one year;

A. The transfer of a business body, including the trademark right, does not constitute “the case of inheritance or other general succession” under Article 27(6) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) which provides an exception to the principle that the transfer of the trademark right and the succession shall take effect at the time of registration.

B. The purport of Article 45 (1) 1 of the former Trademark Act is to prevent consumers from misunderstanding the quality of goods by neglecting the duty of supervision over the use of a third party's trademark without any justifiable reason, and thereby to protect consumers' interest. Thus, barring any special circumstance, in the process that a trademark right holder transfers his/her trademark right to a company represented by him/her and takes procedures for the registration of transfer of trademark right within one year, the case where the transferee company uses the trademark in advance 20 days prior to the registration of transfer shall not be deemed to fall under "the case where he/she impliedly consented to, or allowed to use the trademark" as stipulated in subparagraph 1 of the above Article.

A. Article 27(6)(b) of the former Trademark Act (Amended by Act No. 4210, Jan. 13, 1990); Article 45(1) of the same Act (Amended by Act No. 4210, Jan. 13, 1990); Articles 56(1) and 73(1) of the Trademark Act

Patent Attorney Jeon-chul et al., Counsel for defendant-appellant

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

Korean Intellectual Property Office Decision 90. Sep. 29, 1990, 89Na263

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

We examine the grounds of appeal.

On the first ground for appeal

According to Article 27 (1) of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereinafter the same), a trademark shall not be transferred unless it is like the designated goods' business. According to Article 27 (6) of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereinafter the same), a trademark shall not be transferred unless it is like the designated goods' business, and the effect of the transfer and succession of the trademark rights shall take effect by registration except in cases of inheritance and other general succession. Therefore, the transfer of the trademark shall be accompanied by the transfer of the designated goods' business, or by the transfer of the business, including the trademark right,

Therefore, the court below's decision that the effect of the transfer of registered trademark of this case takes effect on October 24 of the same year, not on August 22, 1988, which is the date of its cause, is just and there is no reason to discuss.

On the second ground for appeal

According to the reasoning of the decision of the court below, the court below held that the registered trademark of this case should be revoked pursuant to Article 45 (1) 1 of the Act, on the ground that the non-party, who was the owner of the trademark of this case before the registration of this case, was aware that the product of the company against which the trademark similar to the registered trademark of this case was sold on September 29, 198, and that the registered trademark of this case was transferred to the company against the respondent from the non-party ○○○ (hereinafter the non-party) who was the former owner of the trademark of this case on October 24, 198, and that the non-party, the non-party, who was the owner of the trademark of this case before the registration of this case, was not a legitimate owner of the registered trademark of this case before October 24, 1988, considering that the non-party was the representative director of the company against which the trademark of this case

In light of the record, it is evident that the respondent acquired the registered trademark of this case from the non-party on August 22, 198 and publicly announced on September 14 of the same year in the newspaper on September 14 of the same year and made the registration of transfer on October 24 of the same year through the period (30 days) under Article 27 (4) of the Act.

Article 45 (1) 5 of the Act provides that trademark registration shall be revoked by a trial only when a person fails to file an application for registration of transfer within one year from the date of transfer where the trademark right is transferred. Meanwhile, the purport of Article 45 (1) 1, which provides that trademark registration shall be revoked when the owner of the trademark right silents or uses it when he/she uses on goods identical with or similar to his/her designated goods, which are identical with or similar to the designated goods, without justifiable grounds, is to prevent consumers from misunderstanding the quality of the goods in question by neglecting the supervisory duty on the use of the third party's trademark, thereby preventing consumers from being confused with the quality of the goods. Thus, barring any special circumstance, barring any special circumstance, the non-party who is the owner of the trademark right transfers the trademark right to the company of which he/she is the representative of the claimant (as of this case, August 22, 198), public notice in newspapers (as of September 14, 198), and in the process of taking the procedure for registration of transfer within one year, it does not constitute a "use or use".

Therefore, the court below should determine whether the non-party's ground for transferring the registered trademark of this case to the respondent, reasons for the transfer thereof, circumstances leading up to the use of the trademark similar to the registered trademark of this case by the respondent, etc.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the grounds for cancellation of trademark registration under Article 45 (1) 1 of the Act, and it points out the points.

Therefore, the case shall be remanded to the Korean Intellectual Property Office, and the case shall be remanded to the Appeal Trial Office. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-chul (Presiding Justice)