Whether Article 73 (1) 1 of the former Trademark Act applies to the cancellation of service mark registration (affirmative), and whether a case where an exclusive licensee who is not a service mark right holder allows another person to use a service mark without registration of non-exclusive license constitutes grounds for revocation under the same subparagraph (negative)

Article 73 (1) 1 and (6) of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997) provides that "where an owner of a trademark right allows another person to use a trademark identical with or similar to his/her registered trademark without registering the establishment of an exclusive or non-exclusive license, an interested person may request a trial to revoke the trademark registration." The above provision applies to the cancellation of the service mark under Article 2 (2) of the same Act. In order to revoke the registration of a service mark under Article 73 (1) 1 of the same Act, "the holder of the right to use the service mark" shall allow another person to use his/her service mark without registering the establishment of the exclusive or non-exclusive license, and "the exclusive licensee who is not the holder of the right to use the service mark" allows another person to use the service mark without registering the establishment of a non-exclusive license, it is not subject to the application of this subparagraph.

Article 2 (2) (see current Article 2 (3)), Article 73 (1) 1 (see current Article 2 (1) and (6) of the former Trademark Act (Amended by Act No. 5355, Aug. 22, 1997);

[Plaintiff-Appellant] Shaki (Law Firm Central Patent Office, Attorneys Lee Byung-ho et al., Counsel for plaintiff-appellant)

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Korean Intellectual Property Trial Office (Korean Intellectual Property Office) 95Na298 decided October 10, 1997

The appeal is dismissed. All costs of appeal are assessed against the claimant.

The grounds of appeal are examined.

Article 73 (1) 1 and (6) of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997; hereinafter the same) provides that "Where an owner of a trademark right has another person use a trademark identical or similar to his/her exclusive or non-exclusive license without registering the establishment of the exclusive or non-exclusive license, an interested person may request a trial to revoke the trademark registration." The above provision also applies to the cancellation of the service mark pursuant to Article 2 (2) of the same Act. In order to revoke the registration of a service mark pursuant to Article 73 (1) 1 of the above Act, "the holder of the service right" has another person use his/her service mark without registering the establishment of the exclusive or non-exclusive license, and "exclusive licensee who is not the holder of a service right" has another person use the service mark without registering the establishment of the non-exclusive license, the application of this subparagraph cannot be made.

According to the records, on November 18, 1989, the respondent filed an application for the instant service mark with the designated service business as a store business, convenience store recruitment and operation business, convenience store, chain store, supermarket operation management business, public restaurant operation business, drug sales brokerage business, gift certificate distribution brokerage business (hereinafter referred to as the "registered service mark of this case") and completed the registration as of May 2, 199 (hereinafter referred to as the "registered service mark of this case"). On May 20 of the same year, the respondent, who is the holder of the registered service mark of this case, changed its name to the non-party Taeok Distribution Co.,, Ltd. (hereinafter referred to as the "Seook Distribution"), which did not use the registered service mark of this case as the non-exclusive licensee's non-exclusive licensee's registered service mark of this case, for the purpose of using the registered service mark of this case as domestic convenience store's non-exclusive licensee's non-exclusive licensee's registered service mark as the non-exclusive licensee's registered service mark of this case without the registration of this case.

In this regard, the court below's decision that the registered service mark of this case cannot be revoked because it does not fall under the grounds for revocation under Article 73 (1) 1 of the former Trademark Act is proper, and there is no error in the misapprehension of legal principles as to Article 73 (1) 1 of the former Trademark Act or incomplete hearing, as alleged in the grounds of

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing judge. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Cho Cho-Un (Presiding Justice)