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The defendant shall be innocent.
Reasons
1. The summary of the facts charged is that the Defendant is operating a specialized restaurant under the trade name of “E” on the Seongdong-gu Seoul Metropolitan Government D and the first floor from May 8, 2008.
From August 29, 2013 to January 8, 2015, the Defendant run a business using the “E” service mark that the victim registered as G with its registration number without obtaining permission from the victim F’s corporation from the above restaurant.
Accordingly, the Defendant committed an infringement on service mark rights.
2. Since the service mark “E” registered by the Defendant’s assertion F Co., Ltd. is null and void, the Defendant used the same or similar trade name as the above service mark.
Even a crime shall not be a crime.
3. Determination
(a) If a trademark is registered, there is a ground for invalidation of the registration;
Even if the registration is declared null and void by a trial, the right to the registered trademark is held as it is until it becomes final and conclusive.
If a trial decision to invalidate a trademark registration becomes final and conclusive, the trademark right shall be deemed never to have existed from the beginning, unlike when a trial decision to revoke the trademark registration becomes final and conclusive or when the trademark right is revoked (the same shall apply to the trademark before it was wholly amended by Act No. 14033, Feb. 29, 2016).
In light of Article 71(3) of the former Trademark Act (Article 420 subparag. 6 of the Criminal Procedure Act), where a trial decision or invalidation judgment on a right becomes final and conclusive as one of the grounds for retrial (Article 420 subparag. 6 of the Criminal Procedure Act) with respect to a case which was pronounced guilty due to a crime infringing a trademark right, even if the act infringing another person’s registered trademark right was conducted before a trial decision invalidating a trademark registration becomes final and conclusive, if a trial decision invalidating a trademark registration becomes final and conclusive, the trademark right that was infringed was not existing from the beginning. Thus, such act cannot be deemed as a trademark infringement
Supreme Court Decision 93Do839 delivered on May 16, 1996