A cancellation decision made without a response
In decision 2025Heo10 of 9 July 2026, the Korean Patent Court addressed service in a non-use cancellation case involving a bankrupt trademark owner. Registration No. 0884496 covered goods in Classes 18 and 25, but the petition concerned all designated goods in Class 25 only.
Korean non-use cancellation concerns a registered mark that neither its owner nor an authorised user has used in Korea for the designated goods for at least three consecutive years before the petition, without justifiable grounds. Company A was declared bankrupt on 28 October 2024, and B was appointed bankruptcy trustee.
Nevertheless, the petition filed on 28 February 2025 named A as respondent. After unsuccessful service on the company, the Intellectual Property Trial and Appeal Board used service by public notice on 3 April 2025. With no response or evidence of use, it cancelled the Class 25 registration on 28 August 2025 in case 2025Dang535.
The trustee was the proper respondent
A bankruptcy trustee administers and disposes of the bankruptcy estate: assets administered in the bankruptcy proceedings for distribution to creditors. The Court treated this trademark cancellation proceeding as a matter concerning that estate.
Under Korea’s Debtor Rehabilitation and Bankruptcy Act, the trustee is the party to litigation concerning the bankruptcy estate. The Court explained that a proceeding seeking cancellation of a bankrupt company’s trademark registration falls within that principle.
The company’s continued appearance as owner on the trademark register therefore did not settle who could conduct the proceeding. Registered ownership and the capacity to act as the proper party had to be considered separately.
The petition had to be read as a whole
The company name in the respondent field was not conclusive. The Court interpreted the relief sought and the grounds of the petition as a whole to identify the intended respondent and determine whether the name was merely misdescribed.
It considered that the petitioner would have proceeded against the trustee had it known of the bankruptcy. The trustee also brought the court action on the basis that he was the substantive party. Taken together, these circumstances identified the trustee as the actual respondent.
The procedural consequences differ. If the trustee is the intended party, the designation should be corrected before examination. If the company itself is definitively the intended party, the petition must be dismissed for lack of proper respondent status, without deciding the merits.
Service had to provide a real opportunity to respond
The trademark register did not record the bankruptcy or appointment when the petition was filed. The corporate register, however, had recorded both on 31 October 2024. The Board should have sought clarification from the petitioner and arranged the necessary correction.
Article 133(1) of Korea’s Trademark Act requires service of a copy of the petition on the respondent and an opportunity to submit a response. Its purpose is to allow the party to understand the claim, make submissions and produce evidence.
The trustee received neither lawful service of the petition nor an opportunity to respond. The company’s silence could not substitute for giving the actual respondent a chance to defend the registration.
The Court decided a procedural issue
The Court allowed the trustee’s challenge and set aside the Board’s decision. The failure to identify and serve the proper party was decisive. Each side was ordered to bear its own litigation costs.
The judgment did not find that the registered mark had been used. Nor did it hold that bankruptcy constituted a justifiable reason for non-use. Those substantive issues must remain distinct from the service defect.
The cancellation proceeding concerned Class 25; it was not a ruling cancelling the Class 18 goods. Equally, success in setting aside the decision should not be presented as proof of use or a final resolution of the non-use allegation.
Practical points for proceedings involving a bankrupt owner
From a practitioner’s perspective, a trademark-register search should be considered alongside the owner’s bankruptcy status and appointment of a trustee. The name on the register may not identify the person who must participate in proceedings concerning the asset.
A petitioner should align the named respondent with the substance of its claim. A responding party should check whether the claim reached the proper party lawfully and whether that party could submit arguments and evidence.
Correcting a party’s designation and completing service are connected steps. Before assessing the strength of use evidence, the proceeding must give the person administering the relevant rights a meaningful opportunity to participate.
The original figure labels and forms are preserved; the text explains the source material.