불사용취소심판에서의 등록서비스표의 서비스표적 사용에 관한 고찰 - 대법원 2013. 11. 28. 선고, 2012후1071 판결을 중심으로 -

Abstract

A registered service mark should be used ① in order to show the origin of the service mark right owner and ② on the designated services in terms of trade norms if use of a service mark is accepted in a trial for cancellation of service mark registration based on non-use. Namely, a service mark right owner, exclusive or non-exclusive licensee should use the registered service mark on the designated services in order to show the origin of his service mark if use of a service mark is accepted in a trial for cancellation of service mark registration based on non-use since “service mark”in Trademark Act means a mark which is used by a person who carries on service business for the purpose of distinguishing his service business from those of others, and using the service mark can't be accepted as the registered service mark where the owner of service mark right uses in order to show the origin of others’ goods or services. Therefore, it is important that a service mark right owner has intent to distinguish the services related to his business from those of another person for being accepted as a registered service mark, and use of the registered service mark should be simultaneously accepted as being used on the designated services in terms of trade norms. Judging from this point of view, I think that the legal principle of determination of Supreme Court decision 2012Hu1071 decided recently based on the all existing decisions is proper and this don't conflict with the legal principle of determination of the former Mokchonok case(Supreme Court decision 2010Hu3080). In conclusion, I think that the Government needs to enact legislation on use of service mark in Trademark Act based on the above legal principle of determination of Supreme Court decisions.