Osaka District Court's judgment on 17th October 2013
On 3rd October 2008, the plaintiff obtained the following trademark: gRAGGAZZAh (designated goods: clothes and shoes).
The plaintiff claimed to the defendant an injunction against the use of
the mark gRagazzah and
compensation for the infringement of the above trademark. Lawyer Kotaro Kageyama and lawyer Sawako Sonoyama of Kageyama International
Law & Patent Firm served as defendantsf representatives.
The Osaka District Court dismissed the plaintifffs claims because of the
following reasons, deciding that the plaintifffs claim was an abuse of
its rights, and that the plaintiff could not show the Plaintifffs trademark
had been widely known among the users.
1. The plaintiff has been using a mark gRAGAZZAh on its goods, however it obtained
the trademark gRAGGAZA,h adding
one more gGh on gRAGAZZAh;
2. The plaintiff filed an application for a
trademark right on gragazzah on 18th May, 2012, however the application
was dismissed for the reason that gragazzah was an Italian word meaning a girl or young lady, which simply indicated
the quality of the consumer suitable for the goods;
3. The above application was made when the sales of the defendant's goods
was started. It was 4 years after the application for gRAGGAZAh was filed. It is assumed that the plaintiff had restrained oneself from filing an application, considering the above reasons;
4. The plaintiff insisted that the defendantfs gRagazzah was similar to the plaintiff's registered trademark gRAGGAZZA,h presupposing that gRAGGAZAh originated in gragazzah in Italy, on the other hand, in an action of nullity for gRagazza,h the plaintiff claimed that gRagazzah was not a word relating to gragazzah in Italy, but a coined word created by using alphabet letters. This is
Supreme Court's judgment on 8th November 2005 (Minshu Vol.59, No.9, p.2333)
Case on annulment of a fraudulent deed.
Tokyo High Court's judgment on 13th October 2004 (Hanrei-taimuzu No.1181,
Tokyo District Court's judgment on 9th September 2003 (Hanrei-taimuzu No.1181,
K Club Co., Ltd. is a limited liability company having a famous golf club in Japan, called gH Golf Club.h Since K Club is a wholly-owned subsidiary of N Kogyo Co., Ltd. whose objects is also the management of golf course etc., in January 1993, N Kogyo put real estates of H Golf Club in pledge under the 20-billion-yen mortgage agreement between N Kogyo and A Bank in order to secure the payment of N Kogyofs debt to A Bank.
After that, on 3rd July 1998, the Tokyo District Court decided to order
K Kogyo the Composition Law to be applied, and then, on 22nd July 2002,
decided to order it to be rehabilitated according to the Civil Rehabilitation
On 2nd August 2002, the Court decided to order K Club to be rehabilitated
according to the Civil Rehabilitation Law, however that was recalled on
30th January 2003. On 7th February 2003, the Court decided to order it
to be reorganized according to the Company Reorganization Law.
On 1st March 1999, K Club, A Bank, and N
Kogyo agreed that K Club would subrogate N Kogyo and pay the 6 billion yen debt
against A Bank by installments not later than every last day of March, June and
September from September 2001 to September 2013, and resigned the claim for
compensation against N Kogyo.
On 13th March 2002, the above credit of A
Bank was transferred to Cayman Islands company, S Corporation.
At the beginning, members of H Golf Club
sued against A Bank to cancel the registration of the revolving
mortgage on the basis of the right of the annulment of a fraudulent deed under Article 424-1 of Civil law, however
the credit rights had been transferred from A Bank to S Corporation, and
consequently, A Bank withdrew from the sue and S Corporation took part
Since the Court decided to order K Club to be rehabilitated according to
the Civil Rehabilitation Law, the supervisors under 140-1 of Civil Rehabilitation
Law took over the action. Then, Company Reorganization Law was applied
to K Club, and the administrators succeeded the supervisors under Article
93-2 and 69-1 of the previous Company Reorganization Law.
The Tokyo District Court, a court of first instance, decided that a fraudulent
deed damaging creditors of the reorganization company is gobjectively the
one which led the reorganization company into the situation of lacking
fundsh and this establishment of the revolving mortgage led the company into the situation of lacking money.
Furthermore, the Court decided that there was no need for the management
of K club under the Company
Reorganization Law to establish this revolving mortgage, as a
result, it was obvious that this was objectively a fraudulent deed damaging creditors of
the reorganization company. The Court concluded that K Club and A Bank had
known that this establishment of the revolving mortgage was a fraudulent deed
damaging creditors of the reorganization company.
The Tokyo High Court explained that gthe situation of lacking fundsh meant
a situation where the company became unable to pay a full debt because
of the decrease of the assets. The following another point at issue was
added: whether or not, the exercise of the right of avoidance against the
contract of the establishment of the revolving mortgage extended only to
the level of the excess of the debt at the time of a fraudulent deed. The
court answered that the purpose of the exercise of the right of avoidance
under the Company Reorganization Law was to allot profits and loss among
many persons having an interest of the company, as one of the rights to
promote the process of the company reorganization, and that the time before
or after the bankruptcy, the principle of the equalitarian of creditors
must be strengthened, consequently, its sphere must be wider than that
of creditorfs right of avoidance under Article 424 of Civil Law.
In this case, although K Club is a
100%-owned subsidiary of N Kogyo, it is an independent reorganization company.
From this point of view, this establishment of the revolving mortgage on H Golf
Club was a kind of disposition by free of charge. The object of this right of
avoidance is a golf course, that is, one identity with the parts working in
coordination which constitutes of a full of real estates under one contract,
therefore the sphere of the right of avoidance extends to the whole contract of
this establishment of the revolving mortgage. This understanding can contribute
to the reorganization of the company and also the strengthening of the
principle of the equalitarian of creditors.
The Supreme Court decided that the administratorsf exercise of right of
avoidance under Article 78-1-1 of old Company Reorganization Law toward
a fraudulent deed damaging creditors or mortgage creditors of the reorganization
company should extend to the whole object with the reasons that: it was
exercised as onefs duty by administrators who can control the whole assets
of the reorganization company in order to restore the general assets to
its original state and maintain the business of the company; therefore
there is no limit like the amount of credit of the person who, on the basis
of the right of the annulment of a fraudulent deed, exercises the right
of avoidance in order to protect onefs personal credit under Article 424
of Civil Law; and when the administrator exercises the right of avoidance,
the amount of the reorganization credits, reorganization mortgage, the
value of the assets belonging to the reorganization company are not confirmed.