[1] Purport of Article 73 (1) 2 of the Trademark Act

[2] In a case where a trademark right holder intentionally manufactures and attaches his/her registered trademark so as to facilitate its transformation, and gives a modified method of trademark to a seller or user of goods on which the trademark is attached and actually used as a modified trademark identical or similar to the cited trademark, whether the registered trademark constitutes grounds for cancellation of trademark registration under Article 73(1)2 of the Trademark Act (affirmative)

[3] In a case where a trademark right holder uses his/her registered trademark identical or similar to that of a well-known or well-known trademark, whether the intent to unlawfully use the trademark is presumed (affirmative)

[4] Whether the reason for cancellation of trademark registration under Article 73 (1) 2 of the Trademark Act is sufficient if there is objective concern about mistake or confusion (affirmative)

[1] The purpose of Article 73 (1) 2 of the Trademark Act is to promote safety in the transaction of goods by regulating a trademark holder to prevent unlawful use of a registered trademark beyond the scope of his/her right to use the registered trademark against the original purpose of the trademark system, and to protect the parties and consumers' interests as well as the business reputation and rights and interests of other trademark holders by preventing unfair competition that takes advantage of the credibility and reputation of another trademark.

[2] If a trademark right holder actively wishes to change and use his/her registered trademark in the same or similar manner as another person's trademark and intentionally wishes to change and facilitate the transformation of the trademark to the seller or user of goods on which the trademark is attached, and as a result, if the registered trademark was actually modified and distributed and used by the seller of goods or consumers in the same or similar manner as the cited trademark in accordance with the intent of the trademark right holder, it is reasonable to deem that the registered trademark constitutes a case where the trademark right holder under Article 73 (1) 2 of the Trademark Act unlawfully uses the registered trademark beyond the scope of the right to use the registered trademark for the purpose of unfair competition to take advantage of the credit or reputation of another person's trademark, as in the case where the trademark right holder directly changed the registered trademark to the registered trademark, and caused consumers to mistake the quality of goods or confused with goods related to another person's business.

[3] The owner of a trademark has the intention of unlawful use of the trademark so long as he/she uses the trademark identical or similar to the subject trademark while knowing the existence of the subject trademark that may cause mistake or confusion. In particular, in cases where the subject trademark is well-known or well-known, the existence of the intention is presumed unless there are special circumstances such as failure to recognize the existence of the subject trademark or the product.

[4] The mistake of the quality of goods or confusion with goods related to another person's business under Article 73 (1) 2 of the Trademark Act is sufficient if there is an objective possibility that such mistake or confusion may occur as well as in the case of actual mistake or confusion.

[1] Article 73 (1) 2 of the Trademark Act / [2] Article 73 (1) 2 of the Trademark Act / [3] Article 73 (1) 2 of the Trademark Act / [4] Article 73 (1) 2 of the Trademark Act

[1] [4] Supreme Court Decision 86Hu51, 86Hu52, Jun. 9, 1987 (Gong1987, 1148) / [3] Supreme Court Decision 89Hu2304, Sept. 11, 1990 (Gong1990, 2096) / [3] Supreme Court Decision 83Hu70, Nov. 13, 1984 (Gong1985, 34) 87Hu87, 87Hu88, May 10, 198 (Gong1988, 954)

샤넬 (소송대리인 변호사 이재후 외 2인)

Appellant (Patent Attorney Kim Byung-jin, Counsel for defendant-appellant)

Korean Intellectual Property Office Decision 97 No. 110 dated December 30, 1997

The appeal shall be dismissed. The costs of appeal shall be assessed against the respondent.

We examine the grounds of appeal.

1. The purpose of Article 73 (1) 2 of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997; hereinafter the same applies) is to promote the safety of trade in goods by regulating that a trademark right holder shall not use the registered trademark unlawfully beyond the scope of his/her right to use the registered trademark in violation of the original purpose of the trademark system because he/she has an obligation to use the registered trademark exclusively to designated goods, or to use the registered trademark faithfully within the extent that it does not lose its identity. In order to prevent unfair competition that is likely to take advantage of the credit or reputation of another person's trademark from being unfair, and to protect the trader and consumers' interest as well as the business reputation and rights and interests of other trademark rights holders (see Supreme Court Decision 86Hu51, 86Hu52, Jun. 9, 1987). In light of the above, the trademark right holder's intent to use the registered trademark directly or indirectly and thereby to mislead consumers or consumers of the registered trademark with the trademark right holder's desire to use the registered trademark and to use it.

In addition, as long as a trademark owner uses a trademark identical or similar to a trademark subject to trademark while being aware of the existence of the trademark subject to trademark that may cause mistake or confusion, the trademark owner has the intention of unlawful use of the trademark. In particular, if the trademark subject to trademark is well-known or well-known, barring special circumstances such as failure to recognize the existence of the trademark subject to trademark or the product subject to the trademark, the existence of the intention is presumed (see, e.g., Supreme Court Decisions 83Hu70, Nov. 13, 1984; 87Hu87, May 10, 198; 87Hu87, May 10, 198; 89Hu2304, Sept. 11, 1990).

According to the reasoning of the decision of the court below, the court below found, based on the adopted evidence, that the trademark of this case was manufactured and attached so that the respondent can easily remove part of the registered trademark of this case with the intention of using it identical or similar to the cited trademark, which is a well-known trademark, and entered the method of modifying the trademark on the tag of goods, and actually, the trademark manufactured and attached by the claimant was distributed or consumed by changing the trademark identical or extremely similar to the cited trademark according to the intention of the respondent, and the trademark manufactured and attached by the claimant is referred to as the trademark in the same name as the cited trademark goods between the trader or consumer. In light of the records and the aforementioned legal principles, the court below's above recognition and determination is just, and there is no error in the misapprehension of legal principles as to the above provision due to a violation of the rules of evidence, as alleged in the grounds for appeal, and there is no error in the misapprehension of legal principles as to the above provision.

2. The mistake of the quality of goods under Article 73 (1) 2 of the former Trademark Act, or confusion with goods related to another person's business is sufficient if there is an objective concern that such mistake or confusion may occur as well as the actual mistake or confusion (see, e.g., Supreme Court Decisions 86Hu51, 86Hu52, Jun. 9, 1987; 89Hu2304, Sept. 11, 1990). Thus, although a trademark used as a figure trademark is additionally used in the form of "JINCHNALPUS" as a trademark, as alleged in the grounds of appeal, since the modified part of the trademark of this case is extremely identical or similar to that of the cited trademark, the actual use trademark is separate and observed from the part of the cited trademark, which is a trademark, and there is no possibility of confusion between the trademark holder and the trademark holder's trademark right holder's trademark right holder's trademark right holder's trademark right holder's trademark right's trademark right holder's trademark right holder's trademark right to accept or confusion.

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-hee (Presiding Justice)