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| Meaning of Trademark Use in Revocation Trial due to 3 Year"s Non-Use |
2008-01-11 |
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FILE:
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Supreme Court Case No. 2002Hu2020, December 26, 2003
A. Issue
The meaning of Use in Trademark Cancellation Trail due to 3 years Non-Use
B. Fact
A trademark owner did not make or sell goods with a trademark within the territory. The owner affixed the trademark upon the goods in a foreign country. But He advertised the goods with the trademark in the territory. The third party imported and sold the goods with the trademark to Korea
C. Holding
The trademark had been used and it shall not be cancelled due to 3 year non-use.
D. Analysis
(1) Article 73, Paragraph 3 of the Trademark Act. The registered trademark shall be revoked, where a trademark owner, exclusive or non-exclusive licensee does not use the registered trademark on the designated goods in Korea without any justifiable reason, for three or more years consecutively before a revocation trial is filed.
(2) A domestic seller imports bags affixed with the registered trademark " " from a foreign country and distributing them domestically. It constitutes a trademark right holder"s domestic use of the trademark where the trademark right holder affixed the trademark in a foreign country. Although a trademark right holder merely affixed the trademark upon the goods in a foreign country without transferring them either directly or through an agency or showing the trademark during the advertisement of the goods in our country, etc., the trademark right holder affixing the trademark should be regarded as having used it domestically unless special circumstances are demonstrated, if domestic traders or consumers knew in light of social norms that the trademark represents the goods related to the trademark right holder"s business who affixed such trademark, and they were distributed after being imported by the third party to our country in the original condition of being affixed with the trademark by the right holder through dealings, displays, etc. in the normal conduct of businesses domestically.
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