불사용으로 인한 상표등록취소 심판에서의 이해관계인 - 특허법원 2009. 8. 13. 선고 2009허2531 판결을 중심으로 -

In 'Patent Court 2009heo2531 decision', the court decided against the past decisions of the Supreme Court and Patent Court by ruling that the trial claimant who applied for a similar trademark as the registered trademark, a day before the cancellation claim was brought for non-use, can be considered as an interested person. This case seems to show the Patent Court’s recent propensity to interpret the recognition of an interested person broadly so that in fact, anyone can be accepted as the interested person unless he misuses his right. What is the ground for broadening the scope of recognition of an interested person? This is based on the understanding over the nature of registered trademark cancellation system owing to non-use. That is to say, the cancellation system is understood to be a regulation for the public interest by regulating those trademarks not being used. That is the reason why Japan revised its Trademark Law in 2006 to allow for anyone to bring a claim for cancellation of registered trademark owing to non-use. However, the above understanding of the registered trademark cancellation system owing to non-use is not in accordance with the interpretation of the Korea Trademark provisions. Japan Trademark Law states that (1) after the trademark registration is cancelled due to non-use, a third party may not apply for the trademark registration for a period of 1 year, (2) no benefit is awarded to the trial claimant, (3) rather, the ex-trademark owner is allowed to re-apply and re-register the trademark without any limitation, and (4) anyone can bring a claim for the cancellation of the registered trademark owing to non-use. Such regulation can be interpreted as only aiming to achieve the public interest of regulating those trademarks not being used while not considering the interests of the interested persons. On the contrary, Korea Trademark Law states that (1) after the trademark registration is cancelled due to non-use, a third party may not apply for the trademark registration for a period of 1 year, (2) the ex-trademark owner can't apply for the trademark registration for 3 years, (3) rather, the exclusive right to apply for the trademark registration is awarded to the trial claimant for 6 months, and (4) by dividing the grounds for bringing a claim for the cancellation of trademark registration to those grounds which can be brought by anyone and other grounds which can be brought only by an interested person, a registered trademark cancellation claim owing to non-use is regulated so that only an interested person can bring the claim. Therefore, Korea Trademark Law goes beyond the goal of simply regulating those trademarks not being used and it aims to adjust the relations between the ex-trademark owner and the interested person who has the actual intent to use the trademark. In short, Korea Trademark Law does not view the essential purpose of the trademark registration cancellation system as being only the regulation for the public interest, but it lays emphasis on the adjustment between the interests of the ex-trademark owner and the interested person. Accordingly, interested person(s) must be limited to those who really use the relevant trademark or who actually intend to use the trademark and the trial claimant should have the burden of proof for establishing such usage or the intention to use the trademark. Therefore, ‘Patent Court 2009heo2531 decision’ is in conformity with the Japan Trademark Law, which allows anyone to bring a claim for the cancellation of the registered trademark owing to non-use. However, the decision is difficult to accept under the interpretation of the Korea Trademark Law.