상표등록의 불사용취소심판에서 등록상표의 동일성 판단 - 대법원 2013.9.26. 선고 2012후2463 전원합의체 판결을 중심으로-

According to a precedent of the Court on the use of identical trademarks in the trial for cancellation for nonuse of trademark registration, it was confirmed that the use of a socially accepted identical form as well as the physically identical form can be considered as the use of the identical trademark and therefore cannot be cancelled. There has been no precedent set by the Court on whether it is the use of an identical registered trademark if a part of either the English or Korean alphabet in the combined trademark is omitted. In the Supreme Court Decision 2012 Hu 2463 presented on 26 Sep. 2013 by the Supreme Court, the Court defined that the use of either the English title or its Korean transliteration title can be treated as the use of a conventionally identical trademark. In the same judgment, the Court confirmed the actual use of the trademark stating that given the English education level of Korea, the use of the identical trademark is acceptable because the English part of the registered trademark, ‘CONTINENTAL’, can be called ‘CONTINENTAL’ even without stating it in the Korean alphabet. This is a significant precedent which suggests a reasonable methodology for identifying trademarks in consideration of Korean language conventions, English education level, and the development of the Internet. Among the examples of the legislation of other countries, Article 50 Clause 1 in the Trademark Law of Japan stipulated that the range of identity for the registered trademark can include the trademarks which are socially accepted to be identical with the registered trademark, presenting the range in parentheses. This same point was established with the precedent of the Korean Court. It is required that the types of trademarks which can be considered to be identical with the registered trademark by social conventions for the consistent management of Trademark Law be defined.