[상표등록무효][공2000.4.15.(104),840]
[1] In a case where only some of the designated goods of a trademark registered with two or more goods as designated goods are invalid, whether each of the designated goods should be determined as to whether the invalidation of registration is invalidated (affirmative)
[2] Whether the trademark "GOLD BLN" constitutes "technical (technical) mark" under Article 6 (1) 3 of the Trademark Act as to coffee, coffee, coffee, coffee, and luminous as the designated goods (affirmative), and whether it constitutes "technical (technical) mark" under Article 6 (1) 3 of the Trademark Act as to ice as the designated goods (negative)
[1] In cases where a trademark has been registered with two or more goods as designated goods, if there are grounds for invalidation only for a part of the designated goods and there are no grounds for invalidation in other parts, whether such registration has been lost or invalidated shall be determined by each designated goods.
[2] The registered trademark "GOLD BLND" recognizes the trademark as "accom, etc. of the highest level of coffee, etc. made by mixing the two goods so that the general consumers can have good and perfume in a direct fashion," so it is difficult to view that the registered trademark as a technical mark is a mark indicating the characteristics of ice quality, efficacy, processing method, etc., in light of trade norms, since the mixture of raw materials among the designated goods of the registered trademark is required for mixing or mixing raw materials among them, and as well, it is difficult to view that the registered trademark as a mark is a mark indicating the characteristics of ice quality, efficacy, processing method, etc., inasmuch as the mixture or mixing of raw materials among the designated goods of the registered trademark is necessary.
[1] Article 71(1) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) / [2] Article 6(1)3 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997)
[1] Supreme Court en banc Decision 92Hu2274 delivered on May 24, 1994 (Gong1994Ha, 1831), Supreme Court Decision 98Hu1693 delivered on December 23, 1998 (Gong199Sang, 242), Supreme Court Decision 98Hu1587 delivered on February 23, 1999 (Gong199Sang, 56382 delivered on May 30, 1997) (Gong1997Ha, 2009Ha, 209) (Gong199Ha, 1288), Supreme Court Decision 98Hu683 delivered on May 28, 199 (Gong199Ha, 209Ha, 209) (Gong1288), Supreme Court Decision 2009Hu36379 delivered on December 24, 2005)
Dong Food Co., Ltd.
Pula Dou National Assembly (Patent Attorney Cha Jae-tae, Counsel for the plaintiff-appellant)
Korean Intellectual Property Trial Office Decision 96DaDa218 dated October 31, 1997
The part of the designated goods of the registered trademark of this case among the decision of the court below is reversed, and that part of the case is remanded to the Patent Court. The remaining appeal is dismissed. The costs of appeal to the Supreme Court are assessed against the respondent.
1. On September 16, 192, the lower court determined that: (a) on the ground that the respondent applied for the designated goods on September 16, 1992 by red, coffee, coffee, coffee, ice and ice and applied for registration on September 17, 1993, the sted's prior meaning in the instant registered trademark [registered trademark (registration number omitted), such as gold, yellow, pigs, and gold] is the Korean negative emblem of ‘GOLD'; (b) it is recognized that the trademark is not widely used by the general consumers of the real society and its quality or grade such as high-quality products; and (c) it is not appropriate to see that the registered trademark is widely used as a combination of two different kinds of designated goods, such as ‘colon' and its high-quality, and thus, it is not appropriate to see that the trademark is widely used as a combination of two different kinds of designated goods, such as ‘colon' and its high-quality, and thus, it is not reasonable to see that the trademark is a combination of English or d'.
2. In a case where a trademark has been registered with two or more goods as designated goods, if there is no ground for invalidation only for a part of the designated goods and there is no ground for invalidation in other parts, whether such registration has been lost or invalidated shall be determined by each designated goods (see, e.g., Supreme Court Decisions 98Hu1693, Dec. 23, 1998; 98Hu1587, Feb. 23, 1999).
3. In this case, the court below is just in holding that the registration is null and void on the ground that the registered trademark constitutes a technical mark indicating the nature of the designated goods, as well as on the ground that the registered trademark is not a distinctive character of the designated goods, and that there is no violation of legal principles, violation of the rules of evidence, incomplete deliberation or violation of the precedents, etc., as asserted in the grounds of appeal (see Supreme Court Decision 96Da56382, May 30, 1997). Accordingly, the grounds of appeal on this point cannot be accepted.
However, since ice among the designated goods of a registered trademark is unnecessary to combine or combine raw materials, it is difficult to view it as a mark indicating the character of ice quality, efficacy, processing method, etc., even though the registered trademark has the meaning as stated in the judgment of the court below in light of trade norms. Nevertheless, the court below erred in the misapprehension of legal principles as to whether the registration of ice among the designated goods is null and void, or failing to exhaust all necessary deliberations, which affected the decision of the court below. Therefore, the grounds for appeal within this scope are with merit.
4. Therefore, the part of the designated goods of the registered trademark among the original decision shall be reversed, and that part of the case shall be remanded to the Patent Court, and the remaining appeal shall be dismissed, and the costs of the appeal shall be borne by the appellate court as per Disposition.
Justices Cho Chang-chul (Presiding Justice)