Article 26 of the Trademark Act where a trademark which cannot have the effect of trademark right is registered.

A request for confirmation of the scope of a trademark right under Article 43(1)3 of the Trademark Act is not simply for the purpose of confirming the technical scope of the trademark itself, but also for the purpose of confirming the effect of the registered trademark right on the trademark in a relationship with the other party’s used trademark at issue based on its technical scope. Thus, if the other party’s used trademark falls under a trademark whose effect of the trademark right under any subparagraph of Article 26 of the Trademark Act, it does not fall under the scope of the right of the registered trademark.

Articles 26 and 43(1)3 of the Trademark Act

Supreme Court Decision 76Da1721 delivered on May 10, 197, 800Da548 delivered on March 10, 1981, 82Hu24 delivered on October 26, 1982

Attorney Yang Dong-han et al., Counsel for the defendant-appellant

claimant

Korean Intellectual Property Office No. 7 decided on March 20, 1984

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

The grounds of appeal are examined.

1. On the first ground for appeal:

According to the records, it is recognized that the registered trademark of this case by the claimant was registered on March 3, 1972, which was at the time of enforcement of the former Trademark Act (Act No. 1295, Mar. 5, 1963), and the trademark was amended by Act No. 3326, Dec. 31, 1980, and the renewal of the registration for September 13, 1982 is made upon the expiration of the duration of the trademark right pursuant to the amended Act. Meanwhile, Article 5 of the Addenda of the above amended Act provides that "if the duration of the trademark is registered before this Act enters into force and is renewed by this Act, the registered trademark shall be deemed to have been registered by this Act." Accordingly, the registered trademark of this case shall have the effect pursuant to the above amended Act, and therefore, in the lawsuit of this case seeking confirmation of the scope of the right to the trademark, it shall be applied to the previous amended Act as a matter of course at the time of registration.

2. On the second and third grounds:

A request for confirmation of the scope of a trademark right under Article 43(1)3 of the Trademark Act is not simply for the purpose of confirming the technical scope of the trademark itself, but also for the purpose of confirming whether the trademark has the effect of the registered trademark right in a relation with the other party's used trademark at a specific point based on its technical scope. Thus, if the other party's used trademark falls under a trademark with no effect of the trademark right under any subparagraph of Article 26 of the Trademark Act, it shall not be deemed to fall under the scope of the right of the registered trademark (see Supreme Court Decision 76Da1721 delivered on May 10, 197; Supreme Court Decision 80Da548 delivered on March 10, 1981; 82Hu24 delivered on October 26, 1982, etc.). Meanwhile, Article 26 subparag. 2 of the Trademark Act provides that the trademark right does not have the effect of the registered trademark right in a common way indicating the designated goods identical or similar to the registered trademark's designated goods.

According to the reasoning of the original decision, the court below determined that the trademark right of the above registered trademark could not have a right to the above mark of the respondent under Article 26 of the Trademark Act, since the "Maman-gu", a part of the trademark of this case, which is the essential part of the trademark of this case, is recognized as a specific oriental medicine room, such as the "Secheon Security only" among the "Secheon Security Order," which is a used mark, which is the used mark of this case, which is the only part of the registered trademark of this case, and therefore, the trademark right of the above registered trademark can not have a right to the above mark of the respondent pursuant to Article 26 of the Trademark Act. In light of the records, in light of the above fact-finding and decision of the court below, it is reasonable in light of the legal principles as mentioned above, and it cannot be found that there was an error of law

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee-hee (Presiding Justice)