[권리범위확인(상)] 확정[각공2010상,156]
[1] The case holding that "brooms" cannot be deemed as a technical mark indicating the quality, efficacy, use, etc. of "electric brooms for livestock", which is the designated goods of the registered trademark and service mark "", in a common way
[2] The case holding that the challenged mark is similar to the registered trademark and service mark " " and the challenged mark " " are similar as a whole, and since "electric slabs for livestock," which are goods using the challenged mark, are included in the designated goods of the registered trademark, the challenged mark falls under the scope of its rights
[1] The case holding that "brooms" cannot be deemed as a technical mark indicating the quality, efficacy, use, etc. of "electric brooms used in cattle, etc." as the designated goods of the registered trademark/service mark "" in the registered trademark/service mark ", since it goes beyond the degree of suggesting the quality, efficacy, use, etc. of the "raw brooms" and it cannot be deemed that the "brooms" cannot be deemed as a technical mark indicating the quality, efficacy, use, etc. of the "raw brooms", which are the designated goods of the registered trademark/service mark "
[2] The case holding that even if there are some differences between the two marks since the appearance and name of the registered trademark and the service mark " " " " are identical or similar to each other," and the marks subject to confirmation are identical or similar to each other, the two marks are identical as a whole, and since the "electric slab for livestock", which is the goods subject to confirmation, is included in the "electric slab for livestock farming, feed pulverization, grain pulverization, sewage waste pulverization," which is the designated goods of the registered trademark, the marks subject to confirmation are similar to the registered trademark, and thus, they fall under the scope
[1] Articles 6(1)1 and 51(1)2 of the Trademark Act / [2] Article 75 of the Trademark Act
Plaintiff (Patent Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)
Defendant 1 and one other (Patent Attorney Cho Man-ho et al., Counsel for the defendant-appellant)
November 12, 2009
1. All of the plaintiff's claims are dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The decision made by the Intellectual Property Tribunal on August 25, 2009 on the case No. 1189 on August 25, 2009 shall be revoked.
1. Basic facts
A. The registered trademark and service mark of this case
(1) Marks:
(2) Date of application/registration date/registration number: May 8, 2006/ May 7, 2007/No. 19818
(3) A trademark/service mark holder: Defendants
(4) Designated goods and service business: “The sales agency business of livestock machinery and materials, the sales brokerage business of livestock machinery and materials,” and “the sales brokerage business of livestock machinery and materials,” under Chapter 35 classification of service business,” under Chapter 7 of the classification of goods.
B. The plaintiff's challenged mark
(1) Marks:
(b) Goods using: Electric Brersh for livestock purposes;
C. Details of the instant trial decision
(1) On May 15, 2009, the Defendants filed a petition against the Plaintiff for an affirmative confirmation of the scope of rights of the instant registered trademark, which is similar to the instant registered trademark and service mark (hereinafter “instant registered trademark”).
(2) After the Intellectual Property Trial and Appeal Board deliberated the case on the above appeal as No. 2009Da1189, on August 25, 2009, the mark and the goods using the challenged mark are identical or similar to the mark and the designated goods of the instant registered trademark, and the challenged mark falls under the scope of the right of the instant registered trademark, and received the above appeal on the ground that the challenged mark falls under the scope of the right of the instant registered trademark.
[Reasons for Recognition] Evidence Nos. 1 through 3, the purport of the whole pleadings
2. Summary of the grounds for illegality of the trial decision of the plaintiff's assertion
The plaintiff asserts that the trial decision of this case is unlawful for the following reasons.
A. The Plaintiff’s affirmative claim to confirm the scope of rights against the Plaintiff is unlawful as there is no benefit of confirmation, since the Plaintiff did not use the challenged mark in its business.
B. The letter of the instant registered trademark, “broom broom” is a technical mark or ordinary name indicating the quality, efficacy, use, etc. of the electric broom for stock breeding, which is the designated goods, in a common way, and falls under Article 51(1)2 of the Trademark Act. Thus, the trademark right is not effective in the challenged mark consisting of the same letter.
C. The instant registered trademark contains diagrams and symbols, and is not similar to the challenged mark.
3. Determination on the legitimacy of the instant trial decision
A. Whether the Plaintiff uses the challenged mark
The fact that the non-party's identity is registered as an individual business operator of Dogsung, which is engaged in the manufacturing business of dairy materials, etc. does not conflict between the parties, and considering the overall purport of the pleadings in the statement No. 1 and No. 3-1 through No. 15, the plaintiff, in the name of the above business entity, advertised and sells a livestock broom electric broom in the name of the product, used "broom brooms" as the product while advertising and selling the livestock brooms, and entered his name and mobile phone number, etc. in the Internet advertisement as his representative or contact address, can be recognized as the fact that the broom burg, the confirmation mark is marked, and the plaintiff's mobile phone number, etc. is indicated as the contact number. According to this, it is reasonable to view that the plaintiff, together with his wife, is running the manufacturing business of dairy materials, etc. with his name, and
Therefore, since the plaintiff uses the mark directly subject to confirmation as a trademark, the plaintiff's assertion that there is no interest in confirmation of the claim for confirmation of the active confirmation of the scope of a trademark is
B. Whether “brooms” is technical marks or ordinary names
(1) Whether a mark is a technical mark indicating the quality, efficacy, etc. of goods in a common way shall be objectively determined by taking into account the concept of the mark, the relationship with the designated goods, the degree of ordinary consumers and traders’ understanding and awareness of the mark, the circumstances of the trade society, etc. However, it does not constitute an objective fact that ordinary consumers can report the mark directly and indirectly, and that it can only be seen only after an examination and deliberation or an advance report (see Supreme Court Decision 2005Hu3031, Apr. 27, 2007, etc.).
As to the letter of the instant registered trademark, “broom brooms” cannot be seen as having the meaning of “broom brooms,” which is the part of the instant registered trademark. However, there is no room to see the meaning of “broom brooms,” which means “brooms, brooms, brooms, brooms, wrooms,” which means “brooms, brooms, brooms, wrooms, wrooms,” and “brooms used to brooms, wrooms, wrooms, wrooms, wrooms,” which are combined with English language. However, even so, it is difficult to derive the meaning of “broom brooms,” which means “brooms, wrooms,” which means that ordinary consumers or traders do not brooms, wrooms, wrooms, or wrooms, and thus, can not be seen as being directly used for the designated goods of the instant registered trademark.
Furthermore, even if the phrase “brooms” (Evidence No. 7) and the phrase “brooms” (Evidence No. 8) that combines the meaning of “brooms, truth, correct quality, etc.,” it cannot be deemed that the phrase “brooms” is a probroom that is hard to understand prior to finding a Korean language prior to finding it, and it cannot be deemed that it is interpreted or connected to “brooms” (Evidence No. 9) that mean “brooms,” such as the Plaintiff’s assertion, which means “brooms,” which means “brooms,” and that “brooms, etc., are related to the quality, efficacy, use, etc. of the brooms for livestock purposes, it cannot be deemed that the meaning of the word “brooms” is a brooms that are difficult to understand prior to finding a Korean language prior to finding it.
Therefore, “brooms” cannot be deemed as a technical mark indicating the quality, efficacy, use, etc. of the instant registered trademark, which is the designated goods of the instant registered trademark, in a common way.
(2) On the other hand, it is not sufficient to recognize that the phrase “brooms” as an ordinary name referring to the electric brooms for the livestock industry by itself with the descriptions of Gap evidence Nos. 17 through 21 (including each number), and there is no other evidence to acknowledge it.
(3) Ultimately, the Plaintiff’s assertion that the trademark right of the instant trademark does not have effect on the challenged mark consisting of the same text, as long as it cannot be seen as a technical mark or ordinary name with respect to the brooms of the instant registered trademark as a part of the letter of the instant registered trademark.
C. Whether the registered trademark of this case and the challenged mark are similar
The phrase “broom broom”, each part of the trademark of this case and the challenged mark, cannot be deemed as a technical mark or ordinary name as seen earlier, and the trademark of this case and the challenged mark shall be deemed as an essential part of each mark, which has central distinctive character, by making it easy to attract the most attention in light of the overall composition of each mark. Since their appearance and name are identical and similar, even if there are some differences as to whether or not they are included in figures and symbols, the two marks shall be deemed as a whole. Furthermore, since the electric broomsh, which is the goods using the challenged mark, is included in the designated goods of the trademark of this case, the trademark of this case and the challenged mark are similar. The Plaintiff’s assertion on
D. Sub-committee
As seen above, the challenged mark is similar to the registered trademark of this case and falls under the scope of the right. Thus, the trial decision of this case, which is the same conclusion, is legitimate.
4. Conclusion
Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is without merit, and it is decided as per Disposition by the assent of all.
Judges Kim Jong-hwan (Presiding Judge)