권리범위확인(상)
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
(a) The Plaintiff’s registered trademark (A) 1)/ the filing date of the instant registered trademark (A) / the registration date / the renewal date / the registration number: C/D/ E 2 February 18, 2019: 3 designated goods: soil for cultivation of plants, soil for plant rearing, plant cultivation, and plant cultivation, classified by category 1;
(b) Goods used in relation to which the defendant's mark subject to confirmation (No. 1) 1: 2: the defendant; 3 users of plant culture: the defendant;
C. On February 20, 2019, the Plaintiff filed a petition with the Intellectual Property Tribunal for an affirmative trial to confirm the scope of rights of the challenged mark with the purport that “the challenged mark is identical or similar to the instant registered trademark, and the goods using the challenged mark also belong to the scope of protection of the instant registered trademark because it is similar to the designated goods of the instant registered trademark.” 2) The Intellectual Property Tribunal dismissed the Plaintiff’s petition on June 2, 2020 on the ground that “The challenged mark generally refers to the name or method of use related to the plant cultivation, which is a used product, or is indicated in the common way with raw materials, and does not fall under the scope of rights of the instant registered trademark” (Article 51(1)2 of the former Trademark Act (wholly amended by Act No. 14033, Feb. 29, 2016).
2. On the grounds delineated below, although the challenged mark falls under the scope of protection of the registered trademark of this case, the instant trial decision was unlawful as it judged differently.
The challenged mark(s) cannot be deemed to have become an ordinary name referring to the plant cultivation soil, and in particular, it is distinguished from the plant cultivation soil, a product using no nutritional ingredients, with the soil made by processing the volcanic soil of the Gabain, Japan.
Therefore, the challenged mark is common in relation to the goods using it, such as general names or raw materials, methods of use.