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(영문) 특허법원 2017. 3. 24. 선고 2016허2379 판결
[등록취소(상)] 확정[각공2017상,277]
Main Issues

In a case where Gap et al. filed a request for a trial to revoke trademark registration against Eul of the trademark right holder of the registered trademark " " " ", which is a new product, on the ground that the registered trademark falls under Article 73 (1) 3 of the former Trademark Act, the case holding that the registered trademark does not fall under the above provision on the ground that Eul used the mark ", which is deemed identical to the registered trademark in light of trade norms, for " "," which is a domestic designated product within three years before the date a request for revocation

Summary of Judgment

In a case where Gap et al. filed a request to revoke trademark registration against Eul, the trademark right holder of the registered trademark " "," which uses new letters as designated goods, on the ground that the registered trademark falls under Article 73 (1) 3 of the former Trademark Act (wholly amended by Act No. 14003, Feb. 29, 2016), the case held that the registered trademark is a trademark whose name "SABRINA" is simply recorded in the two parts, and the trademark "," which is actually used in "new letters," which is one of the designated goods of the registered trademark in Korea within three years before the date a request for revocation is filed, is sufficiently different in that it is the form in which the upper part and lower part of the registered trademark "," among those of the registered trademark, are written in the same letters as the former part of the registered trademark "," and thus, it cannot be seen as being identical to the former part of the registered trademark "No. 3 of the registered trademark in Korea with the latter part "No. 1 of the latter part of the registered trademark "No. 3 of the previous part of the registered trademark,".

[Reference Provisions]

Article 73(1)3 (see current Article 119(1)3) and (4) (see current Article 119(1)3) of the former Trademark Act (wholly amended by Act No. 14003, Feb. 29, 2016)

Plaintiff

Plaintiff (Patent Attorney Deputy Superintendent of Patent Office, Counsel for the plaintiff-appellant)

Defendant

Defendant 1 and one other

Conclusion of Pleadings

March 10, 2017

Text

1. The decision made by the Intellectual Property Tribunal on March 18, 2016 on the case shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. The Plaintiff’s registered trademark of this case (Evidence A1)

1) Date of application/registration date/registration date of renewal/registration number of : March 18, 1996/ August 20, 1997/ December 13, 2007/No. 37271

2) Composition:

3) Designated goods: Frush in Category 25 of the product classification, straws and accessories, leathers, leathers, rubbers, straws, straws, light acids, strings, strings, strings, bathing strings, half-lines, half-lines, vinyls, vinyls, strings, sandbrings, strings, strings, strings, strings for strings, strings, strings, strings, strings for newborns, and strings for infants.

B. Details of the instant trial decision

1) On December 23, 2014, the Defendants filed a petition for revocation trial on the instant registered trademark with the Intellectual Property Tribunal against the Plaintiff, stating that “The instant registered trademark was not used in the Republic of Korea by any of the trademark rights holders, exclusive or non-exclusive licensee for at least three consecutive years before the date a request for revocation is filed, and such registration shall be revoked in accordance with Article 73(1)3 of the former Trademark Act (wholly amended by Act No. 14003, Feb. 29, 2016; hereinafter “former Trademark Act”).

2) On March 18, 2016, the Intellectual Property Tribunal deliberated on the above request for a trial, and rendered the instant trial ruling (Evidence A3) citing the Defendants’ above request for a trial on the ground that “The Plaintiff failed to prove that any of the designated goods was properly used in the Republic of Korea within three years before the date of the request for a trial, and did not prove that there was a justifiable reason for not using the registered trademark. Therefore, the instant registered trademark falls under Article 73(1)3 of the former Trademark Act and its registration must be revoked.”

2. Whether the trial decision of this case is legitimate

A. The plaintiff's assertion

The Plaintiff used the instant registered trademark in Korea within three years from December 23, 2014, which was the date of the instant petition for revocation, with the mark "newness", which is one of the designated goods. Thus, the instant registered trademark does not fall under Article 73 (1) 3 of the former Trademark Act, but is unlawful since the instant registered trademark was judged differently.

B. Determination

1) Facts of recognition

Comprehensively taking account of the overall purport of the pleadings in each description or image of Gap evidence Nos. 4-14 (including various numbers), the Plaintiff may recognize the fact that the Plaintiff sold the following as follows: (a) the Plaintiff sold new products from January 9, 2014 to May 30, 201, indicating the following pictures as “sabrina” and “Common Shos”.

A person shall be appointed.

A person shall be appointed.

On January 9, 2014, 2014, the sales value (including KRW 200,000) of the number of items sold at one’s own sale place (including KRW 200,000) contained in the main text of this Regulation, the Nonparty (○○○ stores) on January 31, 2014, Nonparty (○○○○○○○○ Council) 200,000 Sbribrilar 200,000 Sbrilar 30,80,000 on January 31, 2014, Nonparty (○○○○ Council) 180,80,800 Sbribri 200,000 sobri 200,000,0000 or 2000,000,000 or 300,000 or 2030,000 or 31,205,201 or 2004.

2) Specific review

A) Article 73(1)3 and (4) of the former Trademark Act stipulate that trademark registration may be cancelled by imposing an obligation to use a registered trademark on designated goods and imposing sanctions on a trademark holder or a user who does not use a trademark for a certain period of time in order to correct harm that may arise by adopting a registration principle that allows registration of a trademark regardless of whether to use the trademark if the trademark meets certain requirements. In light of the purport of the aforementioned system, the term “use of a registered trademark” in this context refers to the use of a trademark identical to the registered trademark and does not include cases using a similar trademark. However, “the same trademark” includes not only the registered trademark itself but also a trademark identical to the registered trademark in light of trade norms. In particular, in a registered trademark combining English and its merely translitating Korean language, the combination does not create a new concept in addition to the concept perceived from the meaning of the English language itself, and even if any part in Korean language is omitted, it can not be seen that the trademark is ordinarily used by ordinary consumers or traders in the form of the registered trademark.

B) However, according to the above facts, the registered trademark of this case is a trademark bearing letters “SBRINA” and its simply transpiced in the English language “SBRA” as “,” and the trademark “SBBBBBBBBA” as “the Plaintiff actually used for “new”, one of the designated goods of the instant registered trademark in Korea within three years before December 23, 2014, which was the date the Plaintiff filed a request for revocation of the registered trademark of this case, is somewhat different in that the trademark of this case is in the form of a small letter, such as “”. However, considering the current English spread level in Korea, considering the trademark of this case, the part of the above registered trademark of this case, which is the English language and the lower part of the Korean language, is not deemed to have been interpreted to have been “prob female name” to all general consumers or traders, and it is sufficient to view the part of the registered trademark of this case as the trademark of this case, which is identical to the registered trademark of this case, even if there is no new concept in its combination with Korean language.

C) Meanwhile, in a case where a request is made to revoke registration of some of the designated goods of the registered trademark, the relevant designated goods shall be treated as an indivisible part and the entire designated goods shall be considered as one claim, and the trademark right holder shall prove only one of the multiple designated goods for which the revocation trial is requested. Therefore, insofar as it is recognized that a mark deemed identical to the registered trademark of this case was used in Korea by the Plaintiff, the trademark right holder, within three years before the date of the request for revocation trial, as long as the registered trademark of this case is recognized to have been used in Korea as one of the designated goods, the registered trademark of this case shall not be deemed to fall under Article

3. Conclusion

Thus, the trial decision of this case that held that the registration of this case falls under Article 73 (1) 3 of the former Trademark Act and the registration of this case must be revoked is unlawful, and the plaintiff's claim against the defendants who seek the revocation is justified.

Judge Lee Jong-hee (Presiding Judge) (Presiding Judge)

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