2. Litigation costs shall be borne by the plaintiff.

[Evidence: Each description of evidence Nos. 1 and 3, and all purport of oral argument]

A. Defendant’s registered trademark of this case

(a) Registration number: No. 531304;

(2) Date of application/registration: August 21, 2000/ September 30, 2002

(3) Marks:

(4) Designated goods: 'Skink' under Article 6 (1) [Attachment 1] [Attachment 3] of the former Enforcement Rule of the Trademark Act (amended by the Ordinance of the Ministry of Commerce, Industry and Energy No. 146 of December 24, 2001; hereinafter the same shall apply] 'Skink', 'skinkink', general skinkink', skinkink', fashion skin, frine, shampoo, shrine, shampin,

B. Details of the instant trial decision

The plaintiff made a request for a trial on invalidation of trademark registration that the registered trademark of this case constitutes a mark indicating the efficacy or use of the designated goods in a common way and falls under Article 6 (1) 3 of the Trademark Act, and that the registered trademark of this case has no distinctiveness and falls under Article 6 (1) 7 of the Trademark Act and its registration should be invalidated. The Korean Intellectual Property Tribunal reviewed the above case as 2003Da152 and dismissed the above request for a trial on August 27, 2003 on the following grounds:

C. Summary of the reasoning for the instant trial decision

(1) Although it appears that the registered trademark of this case implies the meaning of "cosmetics that create the outline of ice digging, etc.", it is not recognized as "cosmetics that create the outline of ice digging, etc. in a direct and proper manner," it does not fall under Article 6 (1) 3 of the Trademark Act.

(2) The fact that the entire trademark of this case is used in combination with the “CONUR” part of the instant registered trademark and the “FAOULA” part is used. Thus, the registered trademark of this case does not fall under Article 6(1)7 of the Trademark Act, on the sole basis of the fact that the entire trademark of this case is used in combination with each other.

2. The party's assertion as to the legitimacy of the trial decision of this case

A. Grounds for revoking the trial decision of this case by the plaintiff's assertion

(1) Claim as to Article 6 (1) 3 of the Trademark Act

Of the instant registered trademark “CONUR FOTRULA”, “CONNUR” is a word with the meaning of “leaps, leaps, the scope of “leaps,” “leaps,” and “FORULA” is a word with the meaning of “official formula, method, manufacturing method, and prescription,” and thus, the instant registered trademark has the meaning of “a leapsing and prescribing”, so it is directly reduced into “cosmetics creating the outline of ice digging, etc. in relation to cosmetics as designated goods,” and constitutes an indication of the quality and efficacy of designated goods.

As for the instant registered trademark on the Defendant Company’s website, the “CONUR” refers to the size, face line, and form, and the “FAOULA” refers to the prescription, formula, and the “CONULA” indicates a cosmetic that the Defendant itself acknowledges that the instant registered trademark is a technical trademark.

In the trading society, ‘CONUR' is widely used as a mark indicating the nature of the designated goods such as ‘BOY LIF TCOM CONTR CONTROTRAL, ‘FACITRS POWDER', ‘EYE and LIP CONUTR CREM', ‘EYOTRAL', and ‘FRULA' is also used as a mark indicating the nature of the designated goods in a common way.

(2) Claim as to Article 6(1)7 of the Trademark Act

The term 'CONUR' and 'FTRULA', which form the registered trademark of this case, are marks used commonly in relation to cosmetics, which are designated goods of the registered trademark of this case, such as ‘CONUR' and ‘CONUR', especially 'CONUR' mean ‘lele' and ‘mainly', and are widely used in the vicinity of the snow, or ‘FORULA' are often used in the meaning of ‘the prescription of ingredients used in manufacture of cosmetics.'

In addition, a number of marks which are already combined with CONUR or PEULA on goods identical or similar to the designated goods of the instant registered trademark prior to the application and registration of the instant registered trademark are registered.

Therefore, 'CONUR' and 'FOTRULA' are related to the designated goods of the trademark of this case, and the registered trademark of this case combining it has no distinguishability and exclusive compatibility with other goods.

B. Defendant’s assertion

(1) Claim as to Article 6 (1) 3 of the Trademark Act

The registered trademark of this case does not fall under Article 6 (1) 3 of the Trademark Act because it is difficult to see that the registered trademark of this case is an expression of only the nature of the designated goods to the extent that anyone can have a sense of belonging to the designated goods.

(2) Claim as to Article 6(1)7 of the Trademark Act

In this case, it is natural to see that the registered trademark of this case is referred and recognized as a whole by general consumers or traders as CONUR FTRALA rather than a combination of non-distinctive marks, and in such a case, it forms a completely new distinctive character that is different from the word "CONUR" or "FTRUALA".

The registered trademark of this case had already been recognized as its distinctiveness in the objection case filed by the Plaintiff for a similar reason.

3. Determination

A. Determination as to whether the instant registered trademark is a technical trademark

Whether a trademark is approved solely with a mark indicating the quality, efficacy, use, etc. of goods as prescribed by Article 6 (1) 3 of the Trademark Act in a common way shall be objectively determined by taking into account the concept of the trademark and the common quality, efficacy, use, trade society, etc. of the designated goods. However, the meaning of a trademark shall be free from a direct perspective to a general consumer, and it shall not be subject to consideration if it is possible for a general consumer to report the trademark in a direct manner, and if it is possible to know the purport only after an examination or prior examination or finding a prior report. Such determination shall also be made based on the general consumer unless the designated goods are specific goods that demand and trade by experts (see, e.g., Supreme Court Decision 97Hu2323, Mar. 23, 200). Even if the term "CONURRMUA" of the trademark of this case has the meaning of "outstanding and surrounding" formula, it is difficult for ordinary consumers to find the meaning of the trademark of this case without considering the level of dissemination in our country.

In addition, among the designated goods of the registered trademark of this case, "general cremation, flag, shampoo, shampoo, shampoo, clothing rinse, Hinse, chemical equipment flag, etc." are used for the purpose of flaging and tending the appearance. However, it is not directly changing or forming the appearance or the size of the human body, but indirectly affecting it. Thus, it cannot be seen that the designated goods of the registered trademark of this case are common quality or efficacy of the designated goods of this case without being examined and informed by ordinary consumers.

Therefore, even if it can be said that the registered trademark of this case indirectly expresses the quality or efficacy of the designated goods, it does not constitute a technical mark under Article 6(1)3 of the Trademark Act.

As to this, the plaintiff alleged that the defendant himself/herself recognized the registered trademark of this case as a technical trademark by explaining that the defendant's Internet homepage means cosmetics that give the outline of faceing about the meaning of the registered trademark of this case. However, such explanation is necessary because ordinary consumers or traders cannot directly understand the meaning of the registered trademark of this case, and if it is possible to directly understand the meaning of the registered trademark of this case, the defendant company should not attach such explanation. Thus, the plaintiff's above assertion is without merit.

In addition, the plaintiff asserts that CONUR is used as a technical mark such as 'BDY LIFT CONTR CONTR CONTR PSS MAPDER', 'EYE and LIP CONTR CRETR RECR 'E', 'EYE and NATR CONTR NATRAL', but all the marks cited by the plaintiff are not used independently, but rather 'BODY', 'FACE', 'E', 'E', 'E', and 'EY', 'E', 'E', 'E', and 'E', and 'E', which are used as a basic sign for the supply level of our country', 'E', 'E', 'E', 'E', and 'E', and 'E'. Therefore, it is not reasonable to regard the plaintiff's above body', 'E', 'E', face, etc.

B. Determination as to whether the registered trademark of this case is other non-distinctive marks

Article 6 (1) 7 of the Trademark Act provides that a trademark without distinctiveness shall not be deemed to fall under any of subparagraphs 1 through 6 of Article 6 of the Trademark Act, but its distinctiveness is not recognized. Whether a trademark has distinctiveness or not shall be determined on the basis of which general consumers can recognize the origin of the trademark in relation to a certain product (see Supreme Court Decision 94Hu906 delivered on September 27, 1994). In addition, a trademark which is inappropriate for having a trademark monopolys to one of the public interest shall be revoked or whose registration has already been completed in accordance with the above provision.

According to the statements in Gap evidence 12-1 through 10, Gap evidence 13-1 through 13, trademarks containing "CONUR" or "FRULA" can be recognized as being registered as designated goods, and there is no counter-proof, but a majority of the registered trademarks containing the constituent parts of the trademark of this case can not be viewed as having no distinctiveness as a matter of course. As seen earlier, considering the English and French distribution level in our country, it cannot be concluded that the registered trademark of this case, in which it is difficult to understand its meaning without finding it in advance, has no distinctiveness, and further, it cannot be viewed as being appropriate for the public interest. In this case, the registered trademark of this case cannot be viewed as having been registered in violation of Article 6 (1) 7 of the Trademark Act.

4. Conclusion

Thus, since the registered trademark of this case does not fall under Article 6 (1) 3 (b) 7 of the Trademark Act, the decision of this case is just and the plaintiff's claim of this case is not reasonable.

Judges Cho Yong-ho (Presiding Judge)