Q. In South
Korea, which party bears the burden of proof of use in the non-use cancellation
action against a trademark registration?
A. The burden of proof of use is on the registrant of the trademark registration upon which the non-use cancellation trial is filed. That is, the registrant of the trademark registration should submit the proof of use during the trial in order to prevent the trademark from being cancelled as the result of non-use cancellation trial. Hence, when a one party files the non-use cancellation against a Korean trademark registration, the one does not need to file evidence of non-use.
Article 119 (Trial to Revoke Trademark Registration)(1) Where a
registered trademark falls under any of the followings, a trial to revoke the
trademark registration may be requested:
3. Where none of a trademark right holder, an exclusive licensee or a
non-exclusive licensee has used the registered trademark on the designated
goods in the Republic of Korea for at least three consecutive years without
justifiable grounds before a trial to revoke the registered trademark is
(3) Where a trial to revoke trademark registration is requested on the
grounds that the registered trademark falls under paragraph (1) 3, no trademark
right holder may be exempted from the revocation of trademark registration for
the designated goods related to such lawsuit unless the requested person proves
that he or she has legitimately used the relevant registered trademark on at
least one designated goods related to the trial to revoke trademark
registration in the Republic of Korea within three years before the date the
trial is requested: Provided, That the foregoing shall not apply where the
requested person has proved justifiable grounds for using a registered
trademark which he or she has not used.
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