[상표권사용금지등가처분][공2003.10.15.(188),1991]
[1] The meaning of "ordinary name of goods"
[2] The elements for "ordinary name of a product" to constitute a product mark under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act
[3] The case holding that the mark "Catte" and "Catte" are merely a mark indicating in a common way the ordinary name of coffee and do not constitute "a mark indicating others' goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act
[1] The term "ordinary name of a good" means a general name of a good, which is not recognized as a good related to a particular person's business, such as an ordinary name, abbreviated name, and prompt name, which is actually used and recognized as referring to the good in the transaction system dealing with the designated goods.
[2] The ordinary name of a product is not a common name, but a common name is not a common one, but a combination of common names or a combination of special skills such as its fonts, and it is used for a long time by a specific person, and it is a mark indicating the goods of a certain person in the trade community and thus has distinctiveness, and it constitutes "a mark indicating the goods of another person" as provided by Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act.
[3] The case holding that the mark "Catte" and "Catte" are merely a mark indicating in a common way the ordinary name of coffee and do not constitute "a mark indicating others' goods" under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act
[1] Article 6 (1) 1 of the Trademark Act / [2] Article 6 (1) 1 of the Trademark Act, Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act / [3] Article 6 (1) 1 of the Trademark Act, Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act
[1] Supreme Court Decision 96Hu979 delivered on February 28, 1997 (Gong1997Sang, 945), Supreme Court Decision 96Hu2104 delivered on August 29, 1997 (Gong1997Ha, 2895), Supreme Court Decision 97Hu594 delivered on October 10, 197 (Gong1997Ha, 3462), Supreme Court Decision 2001Hu283 Delivered on November 26, 2002 (Gong203Sang, 258)
Daily Oil Business Co., Ltd. (Law Firm Kim & ShinD U.S., Attorneys Kim Jin-jin et al., Counsel for the defendant-appellant)
Kukca Co., Ltd.
Seoul High Court Order 2002Ra116 dated September 11, 2002
The reappeal shall be dismissed. The costs of reappeal shall be borne by the obligee.
1. The term "ordinary name of a good" means a general name of a good, which is not recognized as a good related to a particular person's business, such as a general name, abbreviated name, and prompt name, which is recognized and actually used as referring to the good in the transaction system dealing with the designated goods (see Supreme Court Decisions 97Hu594 delivered on October 10, 1997, 2001Hu2283 delivered on November 26, 2002, etc.).
In the same purport, the court below held that the mark "Cafe Latte" and "Cafe Latte" used by the creditor on a coffee beverage mixed with the coffee extraction amount and milk constitutes an ordinary name of the product, which refers to a kind of coffee in the Italian Este framework, and there is no error as alleged in the grounds for re-appeal.
2. The ordinary name of a product is not a common name, because there is no distinctive character of one's own product, and is not a common name, but a common name is a combination of common names or a combination of special skills such as its fonts, and it is used for a long time by a specific person, and it is a mark indicating the goods of a particular person in the trade sector, and it has a distinctive character, and it constitutes "a mark indicating the goods of another person" as defined in Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Unfair
In the same purport, the court below held that the mark "Cafe Latte" and "Cafe Latte" attached to a coffee beverage in which the creditor made a mixture of coffee extraction and milk is merely a mark indicating in a common way the ordinary name of the coffee containing milk in the Italian Estecs, and thus does not constitute "a mark indicating others' goods" as provided in Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act, since the creditor did not have distinctiveness even though he used it for a long time. There is no error as alleged in the grounds for re-appeal.
3. Therefore, the reappeal shall be dismissed, and the costs of reappeal shall be borne by the losing creditor.
Justices Zwon (Presiding Justice)