The defendant shall be innocent.

1. From August 10, 2005, the Defendant entered into a franchise agreement with the victim “D” corporation and terminated the franchise agreement on July 2, 2014 while operating the food-raising business in the name of “F” on the second floor of Gwanak-gu in Seoul Special Metropolitan City.

Nevertheless, the Defendant continued to engage in the business with the trade name “F” at the above place, thereby infringing the victim’s right to vote on the service by making the victim combine with “I” registered with the G Korean Intellectual Property Office of the Republic of Korea.

2. Determination

A. Where a trademark is registered, the trademark right shall be held as it is, even if there is a ground for invalidation of registration, until the registration becomes final and conclusive after the invalidation of registration becomes final and conclusive. However, where a trial decision invalidating the registration of a trademark becomes final and conclusive, the trademark right shall be deemed not to have existed from the beginning (Article 71(3) of the former Trademark Act (wholly amended by Act No. 14033, Feb. 29, 2016; hereinafter the same shall apply) unlike the time a trial decision revoking the registration of the trademark becomes final and conclusive or when the trademark right is revoked. Meanwhile, in light of the fact that a case which was pronounced guilty for a crime infringing the trademark right is defined as one of the grounds for retrial (Article 420 subparag. 6 of the Criminal Procedure Act), the trademark right of another person was concluded before the trial decision invalidating the registration becomes final and conclusive (Article 420 of the Criminal Procedure Act).

Even if a trial decision invalidating a trademark registration becomes final and conclusive, the trademark right infringed was not nonexistent from the beginning. Thus, such an act cannot be deemed as an act infringing a trademark right under Article 93 of the former Trademark Act (see Supreme Court Decision 93Do839 delivered on May 16, 1996). (b) Based on the above legal principles, the following facts that can be recognized by the health team and the record as to this case are established.