[1] The meaning of "same facts and identical evidence" under Article 147 of the former Patent Act, which provides for the principle of res judicata

[2] The case holding that a request for a trial on invalidation of trademark registration violates the principle of res judicata on the ground that the trial is identical to the trial prior to a final and conclusive judgment and the same

[1] Article 147 of the former Patent Act (amended by Act No. 4210 of Jan. 13, 1990) which applies mutatis mutandis to an adjudication on trademark rights pursuant to Article 51 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) provides for the principle of res judicata by stating that no person may file a petition for the adjudication on the same facts and the same evidence when the adjudication on the adjudication becomes final and conclusive and conclusive or final and conclusive. Here, "the same fact" refers to the specific fact requiring confirmation in relation to the trademark right in question, and the same evidence includes not only the same evidence as the evidence of the final and conclusive trial decision, which is related to the fact, but also the evidence which has not yet been able to reverse the final and conclusive trial decision.

[2] The case holding that a request for a trial on invalidation of trademark registration violates the principle of res judicata on the ground that the trial is identical to the trial prior to a final and conclusive judgment and the same evidence

[1] Article 51 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (see current Article 77), Article 147 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (see current Article 163) / [2] Article 8 (1) 3 of the former Trademark Act (amended by Act No. 2506 of Feb. 8, 1973) (see current Article 6 (1) 3), (2) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), Article 51 (see current Article 77 of the former Trademark Act), Article 147 of the former Patent Act (amended by Act No. 4210 of Jan. 13, 190) (see current Article 1637 of the former Patent Act)

[1] Supreme Court Decision 90Hu1840 decided Nov. 26, 1991 (Gong1991, 751), Supreme Court Decision 90Hu1840 decided Nov. 26, 1991 (Gong1992, 308), Supreme Court Decision 2000Hu1412 decided Oct. 27, 200 (Gong200Ha, 2469)

Jinmi Food Co., Ltd. (Patent Attorney Park Jae-soo et al., Counsel for the defendant-appellant)

Jinmi Co., Ltd.

Patent Court Decision 99Heo3474 delivered on August 19, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Article 147 of the former Patent Act (amended by Act No. 4210 of Jan. 13, 1990) which applies mutatis mutandis to an adjudication on trademark rights pursuant to Article 51 of the former Trademark Act (amended by Act No. 4210 of Nov. 13, 1990) provides that when a trial decision under this Act becomes final and conclusive and conclusive, anyone cannot request the adjudication based on the same fact and the same evidence, and thus, the same fact refers to the same specific fact requiring confirmation in relation to the trademark right concerned, and the same evidence includes not only the evidence identical to the evidence of the final and conclusive trial decision before it becomes final and conclusive and conclusive (see, e.g., Supreme Court Decisions 90Hu1840 of Nov. 26, 1991; 200Hu14127, Oct. 27, 2000).

Before the request for a trial of this case is filed, the examiner of the Korean Intellectual Property Office dismissed the request on the ground that the registered trademark (registration number omitted) of this case was a trademark indicating the so-called character under Article 8 (1) 3 of the former Trademark Act (amended by Act No. 2506 of Feb. 8, 1973) (hereinafter referred to as the "pre-trial trial") and the registered trademark of this case constitutes a trademark consisting solely of a mark indicating the quality and efficacy of the designated goods in a common way, but the registered trademark of this case constitutes a trademark with the indication of the quality and efficacy of the designated goods, which is recognized remarkably among consumers by the use prior to the filing of the application under Article 8 (2) of the former Trademark Act, and such decision became final and conclusive on March 14, 1990 and confirmed on March 14, 190, and the defendant constitutes the trademark of this case and thus, the registration of this case constitutes the trademark of this case is null and void on the ground of its nature.

On the other hand, the previous trial and the instant trial are identical with all the alleged facts. However, although there are somewhat differences in the evidentiary relations, the new evidence submitted in the instant trial do not have sufficient evidence to the extent that the previous trial may reverse the said trial decision. Therefore, the instant trial request violates the principle of res judicata by requesting the same trial based on the same facts and the same evidence as the previous trial decision became final and conclusive. In addition, pursuant to the provisions of the former Trademark Act, an examiner cannot request a trial for invalidation on the ground that a registered trademark is a trademark indicating its nature, and thus, it was erroneous for the Korean Intellectual Property Office to decide on the merits of the previous trial without dismissing the examiner’s request, but this does not affect the application of the principle of

The judgment of the court below to the same purport is just, and there is no error of law as alleged in the grounds of appeal.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Zwon (Presiding Justice)