A. The meaning of "interested person" under Article 43 (2) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

(b) The case holding that the above "interested person" cannot be deemed to be an "interested person" merely because the fact that it is entered as the purpose of its establishment in the corporate register is not enough to be

A. An interested party under Article 43(2) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) refers to a person who has a direct and realistic interest in the extinguishment of a trademark, inasmuch as the existence of an unlawful trademark registration to be cancelled may result in the impossibility of using a trademark identical with or similar to the registered trademark due to the invalidation of the trademark right.

(b) The case holding that the above "interested person" cannot be deemed to be an "interested person" merely because the fact that it is entered as the purpose of its establishment in the corporate register is not recognized as actually engaged

Article 43 (2) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

A. Supreme Court Decision 88Hu1328 delivered on January 25, 1990 (Gong1990,535) 90Hu2287 delivered on May 14, 1991 (Gong1991,1646) 91Hu162,179 delivered on July 28, 1992 (Gong192,268) 79Hu46 delivered on August 14, 1979 (Gong1979,12170)

Magmans Co., Ltd.

Patent Attorney Lee Ji-soo et al., Counsel for defendant-appellant

Korean Intellectual Property Office Decision 461 dated October 31, 1991

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.

Article 43 (2) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) provides that a trial to revoke a trademark registration may be requested only to an interested party. An interested party under the above provision refers to a person who has a direct and realistic interest in the extinguishment of the trademark, inasmuch as the existence of an unlawful trademark registration to be revoked is likely to cause damage because the trademark right holder is unable to use the trademark identical or similar to the registered trademark because it is set up against the trademark right due to the impossibility of using the trademark identical or similar to the registered trademark (see, e.g., Supreme Court Decision 86Hu78,79,80, Oct. 26, 1987; 88Hu1328, Jan. 25, 1990).

However, the court below determined that the appeal of this case was a legitimate claim by interested parties because it can be known by evidence Nos. 2 (Certified Copy of corporate registry) that the claimant is operating the business identical to the designated goods of the trademark of this case. However, the above evidence No. 2 merely stated that the purpose of establishment of the claimant company was a sports product sales business of the designated goods of this case. Thus, it cannot be acknowledged that the claimant is actually engaged in the sales business of the goods of the same kind as the designated goods of the trademark of this case. Thus, the claimant cannot be deemed as an interested party who is directly and actually interested in the extinction of the trademark of this case (see Supreme Court Decision 79Hu46 delivered on August 14, 1979). Ultimately, the original decision is erroneous in the misapprehension of legal principles in determining whether the claimant is an interested party with regard to the cancellation of registration of the trademark of this case, or failing to exhaust all deliberations, which affected the conclusion of the decision

Therefore, without examining the remaining grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Office Appeal Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)