Jeju Co., Ltd.

Transmission Industry, Inc.

February 2, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on October 6, 201 on the case No. 2011Da769 shall be revoked.

1. Basic facts

A. Defendant’s registered trademark of this case

1) Date of application/registration date/registration number: May 14, 2008 / June 15, 2009 (registration number omitted)

2) Composition:

(iii) Designated goods: Artificial stones of Category 19 classified into products, non-metallic materials for concrete, non-metallic surface finishing materials for construction, building stones (unprocessed stones), block for non-metallic materials, cement block, concrete block, cement reporting board, cement reporting board, bricks (excluding cement products), non-metallic materials, concrete mortars, stone, processed stones;

B. The plaintiff's challenged mark

1) Gu sex:

(ii) products using a product: Twit-piles, reticulating stones, reticulating materials, reticulating sidewalk blocks, and blocks for purifying household wastewater;

C. Details of the instant trial decision

1) On April 5, 2011, the Plaintiff had the right to continue to use the challenged mark based on the prior use right under Article 57-3 of the Trademark Act against the Defendant in the Intellectual Property Tribunal. Accordingly, the challenged mark does not fall under the scope of the right of the instant registered trademark, and the Plaintiff filed a claim to confirm the scope of the right.

2) The Intellectual Property Trial and Appeal Board rendered a trial ruling to dismiss the Plaintiff’s petition on October 6, 201, on the grounds that it cannot be deemed that the challenged mark was recognized by the Plaintiff, etc. as indicating the goods of a specific person by using the challenged mark prior to the filing date of the instant registered trademark, etc.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Gap evidence 7, the purport of the whole pleadings

2. Whether the challenged mark falls under the scope of rights of the registered trademark of this case;

A. Determination of preparation

The registered trademark of this case and the challenged mark are composed of only the word “Timan,” and their external appearance, concept and name are identical and similar, and both the goods using the challenged mark and the designated goods of the instant registered trademark are identical and similar to those of other days, bricks, blocks, etc. (where the registered trademark of this case and the challenged mark are similar to the marks and the designated goods, there is no dispute between the parties as to the similarity of the marks).

Therefore, if two marks are used together, it is likely that general consumers or traders may mislead and confuse the source of goods. Thus, the challenged mark falls under the scope of the right of the registered trademark of this case.

B. Judgment on the Plaintiff’s assertion

The Plaintiff asserts to the effect that the Nonparty and the Plaintiff continued to use the challenged mark in Korea from before the application for the trademark of this case, without the purpose of unfair competition, since the challenged mark was recognized as indicating the goods of a specific person among domestic consumers, the Plaintiff is entitled to prior use of the challenged mark pursuant to Article 57-3 of the Trademark Act, and therefore, the challenged mark does not fall under the scope of the right of the trademark of this case.

However, the purpose of a trial to confirm the scope of a trademark right is to confirm whether the trademark (a mark subject to confirmation) which a claimant is the object of a trial on the basis of the scope of protection of a registered trademark right does not have an effect on the trademark right. Thus, even if the plaintiff has the right to prior use the trademark subject to confirmation, as alleged by the plaintiff, such circumstance cannot be claimed for a trial to confirm the scope of a trademark right on the ground that the trademark subject to confirmation has no relation to seeking confirmation that the trademark subject to confirmation does not fall under the scope of a trademark right, regardless of the plaintiff's assertion as a defense in the lawsuit for infringement of the trademark right (negative). (See Supreme Court Decisions 2010Hu289, Dec. 9, 2010; 73Hu8, Aug. 30, 1974, etc.).

Therefore, the plaintiff's above assertion on the premise that it is different from this point of view is without merit.

3. Conclusion

Therefore, the decision of this case, which dismissed the plaintiff's passive scope of right, is just, and the plaintiff's claim seeking its revocation is without merit, and it is so dismissed as per Disposition.

Judges exhaust fever (Presiding Judge) and Kim Yong-deok