Whether a trademark for which a trial decision on invalidation of trademark registration has become final and conclusive falls under “ another person’s registered trademark by prior application” under Article 7(1)7 of the Trademark Act

Where a trial decision to invalidate a trademark becomes final and conclusive, the trademark right is deemed to have never existed from the beginning, unlike the time a trial decision to revoke the registration of the trademark becomes final and conclusive or the registration of the trademark is cancelled. Thus, even if the cited trademark was registered at the time of the application for registration of the applied trademark, if a trial decision to invalidate the trademark becomes final and conclusive, the cited trademark shall be deemed not to have existed at the time of the application for registration of the applied trademark, and the cited trademark shall not have existed at the time of the application for registration of the trademark. Thus,

Article 7(1)7 of the Trademark Act, Article 71(3) of the Trademark Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4548, May 27, 1994; hereinafter “Plaintiff-Appellant”) and Plaintiff 1 and 1 other (Law No. 4483, May 27, 1994; hereinafter “Plaintiff-Appellant”)

Applicant Kim Jin et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 92Na2681 dated May 10, 1994

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal by applicants are examined.

According to the reasoning of the original decision, the court below held that the original trademark is similar to the original trademark "use" which was applied on April 18, 1991 and was registered previously. Even if the original trademark becomes final and conclusive on July 26, 191 with respect to the cited trademark, it does not affect the application of Article 7 (1) 7 of the Trademark Act under Article 7 (3) of the same Act pursuant to Article 7 (3) of the same Act. Thus, the original decision rejecting registration by applying the above subparagraph 7 to the original trademark applied prior to the final and conclusive decision to invalidate the registration of the cited trademark was justifiable.

However, when a trial decision to invalidate the registration of a trademark becomes final and conclusive, unlike when a trial decision to revoke the registration of the trademark becomes final and conclusive, the trademark right is deemed to have never existed from the beginning (see Article 71(3) of the Trademark Act, Article 90Hu281, March 22, 1991, and Article 93Hu1339, May 27, 1994). In this case, even if the trademark was registered at the time of the application for the registration of the original trademark, if a trial decision to invalidate the registration of the cited trademark became final and conclusive, the cited trademark shall be deemed not to have existed at the time of the application for the registration of the original trademark, and the cited trademark shall not be deemed to have existed at the time of the application for the registration of the original trademark, and therefore, the cited trademark shall not be deemed to have constituted “other

The court below's decision that the original trademark cannot be registered because it is similar to the cited trademark registered prior to the above is erroneous in the misunderstanding of legal principles as to the validity of the decision on the invalidation of trademark registration or the interpretation of Article 7 (1) 7 of the Trademark Act, which affected the conclusion of the decision. Therefore, the ground for appeal pointing this out has merit.

Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)