Whether a plaintiff can apply for the provision of legal costs in a lawsuit seeking revocation of a decision by the Patent Court (negative), and whether the same applies to the case where the defendant of the lawsuit seeking revocation of a decision by the Patent Tribunal against which the defendant is dissatisfied with the lawsuit (affirmative)

A trial for invalidation of trademark registration is an administrative procedure in the Korean Intellectual Property Tribunal and the trial decision constitutes an administrative disposition, and the litigation for revocation of a trial decision, which is an objection thereto, constitutes an administrative litigation. Article 117(1) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, provides that where a “Plaintiff” does not have a domicile, office, and place of business in the Republic of Korea, or where it is deemed necessary to provide a security for litigation costs, such as where the claim based on the complaint, brief, and other court records is evident that no reason exists, the court shall order the Plaintiff to provide a security for litigation costs. Accordingly, even in a litigation for revocation of a trial by the Patent Court of Korea, the Plaintiff is only the Defendant, and the Plaintiff cannot make such a request, and this is also the same even if the

Article 8(2) of the Administrative Litigation Act, Article 117(1) of the Civil Procedure Act

Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Southern-gu et al., Counsel for the defendant-appellant)

E-Sast, Rocop (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Patent Tribunal Decision 2010Da3046 dated January 3, 2012

The motion for the provision of litigation costs of this case is dismissed.

The grounds for an application shall be examined by the applicant.

A trademark invalidation trial is an administrative procedure in the Korean Intellectual Property Tribunal, and the trial decision constitutes an administrative disposition, and the litigation for revocation of a trial decision, which is a lawsuit against it, is subject to an administrative litigation. Article 117(1) of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, provides that where a “Plaintiff” does not have an address, office, or place of business in the Republic of Korea, or where it is deemed necessary to provide a security for litigation costs due to a written complaint, preparation documents, and other court records, the court shall order the Plaintiff to provide a security for litigation costs. Accordingly, even in a litigation for revocation of a trial by the Patent Court of Korea, the right to request a security for litigation costs is only against the Defendant, and the Plaintiff cannot apply to this case even if the Defendant is a petitioner for a trademark invalidation trial against which the trial

According to the records, on December 7, 2010, the respondent filed a petition for a trial for invalidation of trademark registration with the Intellectual Property Tribunal. The Intellectual Property Tribunal deliberated on the petition as 2010Da3046, and rendered a trial decision to invalidate trademark registration by accepting the petition on January 3, 2012. Meanwhile, on February 3, 2012, the applicant filed a lawsuit seeking revocation of the above trial decision with the Patent Court with the respondent as the defendant on February 3, 2012. The Patent Court accepted the petition and revoked the trial decision on May 11, 2012, and the respondent filed a final appeal with the Supreme Court on May 25, 2012, and the applicant filed a lawsuit with the Supreme Court on July 19, 2012.

Therefore, in light of the above legal principles, the application for the provision of litigation costs of this case is unlawful as it was made by the plaintiff in the merits without the right to apply for the provision of litigation costs under Article 117(1)

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench that the motion for offering the lawsuit of this case is dismissed.

Justices Kim Yong-deok (Presiding Justice)