Trademark Act Article 52-2: Trial for Cancellation of Improper Use
1. Explanation of the Article
This article provides for a trial for cancellation of improper use in cases where: (1) a portion of a trademark right pertaining to some of the designated goods, etc., has been transferred, and (2) a portion of two or more trademark rights pertaining to similar trademarks has been transferred.
The provisions of this article are established as measures to prevent confusion that is expected to occur due to: (1) the approval of the split transfer of trademark rights for similar goods and services, and (2) the approval of the separate transfer of trademark rights that are similar to each other.
The trial for cancellation of improper use under this article targets both the assignor and the assignee of the trademark right at the time of the separate transfer or the split transfer under Article 24-2 of the Trademark Act.
Also, the purpose of unfair competition is a requirement. This is because both the assignor and the assignee of the trademark right are trademark holders, so confusion can occur even with legitimate use. In particular, when a portion of a trademark right pertaining to some of the designated goods, etc., is transferred, the possibility of confusion is high because the trademark used is the same.
2. Relationship with other articles
As one way of thinking about the scope of trademark rights, there are:
(1) the scope in which a trademark holder can actively use a registered trademark (scope of exclusive right), and
(2) the scope in which a trademark holder can effectively use a registered trademark (scope of prohibitive right).
Article 52-2 of the Trademark Act concerns use by a trademark holder within the scope of the exclusive right, while Article 51 concerns use by a trademark holder within the scope of the prohibitive right. Article 53 concerns use by a licensee (both the scope of the exclusive right and the scope of the prohibitive right).
Articles 51 and 52-2 of the Trademark Act are sanctions against improper use by trademark holders. On the other hand, the trial for cancellation of improper use under Article 53 of the Trademark Act is a sanction against a trademark holder's failure to fulfill their supervisory duty when a licensee engages in improper use.
- Trademark Act Article 52-2
Article 52-2: Where, as a result of the transfer of a trademark right, trademark rights pertaining to similar registered trademarks used for the same goods or services, or identical or similar registered trademarks used for similar goods or services, come to belong to different trademark holders, if a trademark holder of one of the registered trademarks uses the registered trademark for the designated goods or designated services with the purpose of unfair competition in a manner that causes confusion with goods or services pertaining to the business of a trademark holder, exclusive licensee, or non-exclusive licensee of another registered trademark, any person may file a request for a trial for the cancellation of the trademark registration. (2) The provisions of Article 51, paragraph (2) and the preceding article shall apply mutatis mutandis to the trial in the preceding paragraph.
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