(a) Where the effect of a registered service mark right does not extend to whether the registration of the service mark is null and void;

(b) The case holding that the registered service mark "Seoul does not have the effect of the registered service mark right against "U.S. Seoul" consisting of a conspicuous geographical name and a tolerance mark;

C. Whether the registered service mark right cannot be effective regardless of whether it is used for the purpose of unfair competition even if the service mark falls under the service mark under Article 51 subparagraph 3 of the Trademark Act (Article 51 subparagraph 1 of the Trademark Act)

A. Article 51 of the Trademark Act provides that a trademark right holder shall not have the effect of a trademark right by deeming that it is inappropriate to grant the trademark right holder an exclusive license in cases falling under any of the following subparagraphs with respect to the right that the trademark right holder has under the Trademark Act. Therefore, regardless of whether the registration of the trademark is invalid or not, the trademark right cannot have the effect of another trademark. This legal principle also applies to

B. The case that "Seoul" among the parts of the registered service mark that combines diagrams and letters "Seoul" is a conspicuous geographical name as the name of the capital of the Republic of Korea and is currently used in general, ornamentally, in particular a restaurant, or in French and French, it is a mark that is used by others in accordance with Article 51 (3) of the Trademark Act, and it is not effective for the service mark in the form of "Tin Seoul or Seoul" letter that is used by others pursuant to Article 51 (3) of the Trademark Act.

(c) Where a service mark consists of a public mark under Article 51 subparag. 3 of the Trademark Act, or a conspicuous geographical name, even if the service mark falls under a service mark indicating in common use his trade name under Article 51 subparag. 1 of the Trademark Act, the effect of the registered service mark right may not be affected regardless of whether it is used for the purpose of unfair competition or not.

Articles 2(2) (Article 51), 6(1)2, and 6(1)4 of the Trademark Act

A. Supreme Court Decision 80Da548 delivered on March 10, 1981 (Gong1981, 13791) 83Hu69 delivered on January 24, 1984 (Gong1984, 374) 92Hu452 delivered on November 10, 1992 (Gong193Sang, 114) 86Hu4 delivered on June 23, 1987 (Gong1987, 1237)

[Judgment of the court below]

Defendant

Seoul High Court Decision 92Na67638 delivered on November 17, 1993

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

The grounds of appeal are examined.

1. On the first ground for appeal

Article 51 of the Trademark Act provides that, in cases falling under any of the following subparagraphs, a trademark right holder shall not be granted an exclusive right to the trademark holder in accordance with the trademark law. Thus, regardless of whether the registration of the trademark is invalid or not, the effect of the trademark right cannot be affected by another trademark (see Supreme Court Decision 80Da548, Mar. 10, 1981; Supreme Court Decision 83Hu69, Jan. 24, 1984). This legal principle applies to the service mark under Article 2(2) of the Trademark Act.

The court below's decision that "Seoul" among the parts of the registered service mark of this case which combines diagrams and letters "Seoul" is a conspicuous geographical name as the name of the capital of the Republic of Korea and "Do" is currently being used in general, ornamentally, especially in a restaurant, or in a fluorite fluor, etc., so it is not effective against the service mark in the service mark in the form of "Tho Seoul" used by the defendant under Article 51 (3) of the Trademark Act. It is just in accordance with the above legal principles and there is no error of law by misunderstanding the legal principles of the Trademark Act. The argument is without merit.

2. On the second ground for appeal

Even if a service mark constitutes a service mark indicating in a common way his/her own trade name as provided in Article 51 subparagraph 1 of the Trademark Act, even if it constitutes a service mark indicating in a common way his/her own trade name as provided in the main sentence of Article 51 subparagraph 1 of the Trademark Act, the effect of the right to registered service mark cannot be affected (see Supreme Court Decision 86Hu4 delivered on June 23, 1987).

Therefore, it is not appropriate for the court below to determine whether the defendant's use of the service mark was an object of unfair competition based on evidence, but it is just in its conclusion rejecting the plaintiff's assertion that the defendant's use of the above service mark constitutes the proviso of Article 51 subparagraph 1 of the Trademark Act and thus it affects the effect of the plaintiff's right to use the service mark, and there is no illegality of law

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)