A. Whether the calculation of a six-month period under Article 73(1)1 of the Trademark Act includes a case where six months have elapsed since the time of enforcement of the former Trademark Act

(b) Whether the revocation of trademark registration cannot be exempted if a non-exclusive licensee has used the trademark for at least six months without registration of establishment;

A. Article 73(1)1 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) provides that trademark registration may be revoked only when a person uses his/her registered trademark to the designated goods, etc. without registration of establishment of right to use, regardless of the period of time, if a person uses the registered trademark, etc. for the designated goods, etc. without registration of establishment of right to use the registered trademark, and Article 73(1)1 of the amended Trademark Act provides that trademark registration may be revoked only when he/she allows another person to use the registered trademark for not less than six months without registration of establishment of right to use. The purport of the provision is to relieve the difficulty of cancellation without sufficient time for registration at the time of permission of use of the registered trademark in practice in applying the above provision under the former Trademark Act. Thus, even in cases where the amended Trademark Act applies pursuant to Article 7(2) of

B. Unlike the former Trademark Act, the amended Trademark Act provides that the right to use a trademark shall be divided into the exclusive license and the non-exclusive license, and the exclusive license shall be claimed only when the establishment of the trademark is registered, and a non-exclusive license shall be freely arising under a contract between the parties and the third party without registration of establishment, and registration of establishment is required to oppose the third party. However, Article 73(1)1 of the amended Trademark Act provides that "Where a trademark right holder has another person use a trademark identical with or similar to his/her registered trademark on goods identical with or similar to the designated goods for at least six months without registration of establishment of the exclusive license or the non-exclusive license, and even in the case of a non-exclusive license, the revocation may not be exempted if the registered trademark is used for at least six months without registration of establishment.

(a) Article 73(1)1 of the Trademark Act; Article 7(2) of the Addenda of the Trademark Act; Article 45(1)1 of the former Trademark Act (see current Article 73(1)1); Articles 57 and 58 of the Trademark Act

claimant

Attorney Ahn Young-young, Counsel for defendant-appellant

Korean Intellectual Property Office Decision 468 Dated April 28, 1994

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

The grounds of appeal by the appellant are examined.

1. On the first ground for appeal

Article 73 (1) 1 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990; hereinafter the same applies) provides that a trademark registration may be revoked immediately regardless of the period when a person uses his/her own registered trademark, etc. on the designated goods, etc. without the establishment registration of a right to use (Article 45 (1) 1 of the former Trademark Act), whereas Article 73 (1) 1 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990; hereinafter the new Act) provides that a trademark registration may be revoked only when a person uses it for six months or more without the establishment registration of a right to use, without the time to register it at the time of permission for use in practice. In light of the above purport, even if the above provision applies pursuant to Article 7 (2) of the Addenda of the former Trademark Act, the above requirements are satisfied when calculating the period of six months or more after the enforcement of the former Trademark Act.

The judgment of the court below to the same purport is just and it is not erroneous in the misapprehension of legal principles as to Article 7 (2) of the Addenda to the new law.

There is no reason to discuss this issue.

2. On the second ground for appeal

Unlike the former Act, the new Act provides that the right to use a trademark shall be divided into the exclusive license and the non-exclusive license, and the exclusive license shall be claimed only when the establishment of the right is registered, and the non-exclusive license shall be freely arising under a contract between the parties and the third party, and the establishment of the right to use shall be registered in order to oppose the third party (Articles 57 through 58 of the new Act). The same is a novel theory, but Article 73 (1) 1 of the new Act applicable to this case provides that "where a trademark right holder allows another person to use a trademark identical or similar to his/her registered trademark on goods identical or similar to the designated goods without registering the establishment of the exclusive license or the non-exclusive license, and if the other person uses the registered trademark, etc. for six months or more without registering its establishment, the revocation may not be exempted in cases of a non-exclusive license.

From the same view, the court below is just in holding that the registration of the service mark of this case should be revoked by applying Article 73 (1) 1 of the new Act in this case where the registered service mark of this case was used without registering the establishment of the right to use the service mark for not less than 6 months and the establishment of the non-exclusive license was completed later, and there is no error in the misapprehension of legal principles as to non-exclusive license, such as theory, or in the omission of judgment that affected the result of the trial decision. In the case where Article 73 (1) 1 of the new Act allows another person to cancel the registration of the service mark of this case without registering the establishment of the non-exclusive license, it is a legislative error to allow the cancellation of the registration of the service mark of

There is no reason for this issue.

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 Chocheon-sung (Presiding Justice)