Gangnam-gu Seoul Central District Court

Representative Director Doese

Attorney Hong-soo et al., Counsel for the plaintiff-appellant

At least a litigation performer;

2. The litigation costs shall be borne by the plaintiff.

A. Application number of the pending service mark (1): 2003 - 11175 (2) date: May 28, 2003

(3) Marks: (4) Designated service business: Class 38 of the attached Table 2 of Article 6(2) of the Enforcement Rule of the Trademark Act, “Internet users connection control business, electronic bulletin board service business (BBS), and correspondence and video transmission business using computers”. (2) The decision of refusal and the process of the instant decision.

On October 20, 2004, the Korean Intellectual Property Office rendered a decision of rejection by applying each subparagraph of Article 6(1)3 and 7 of the Trademark Act, on the ground that “Akbook,” which is the pending service mark of this case, is commonly used for a group of club members in cyber space (including those with similar interest and hobbies exchange information and present their opinions in cyber space) using communications in the actual condition of trade in the necessary mechanism developed by IT industry, is an indication of the nature directly indicating the use, nature, etc. of the service if it is used for a designated service business, and it cannot be identified for whom service business is displayed.

The plaintiff filed for a trial seeking the revocation of the above decision of refusal, but the Korean Intellectual Property Trial and Appeal Board reviewed it as 2004 Won5081 and dismissed the plaintiff's request for a trial on March 30, 2005.

C. Summary of the reasoning for the instant trial decision

The pending service mark of this case is a technical mark that directly indicates the shape, place of provision, use, etc. of the designated service business, as it is widely used as the term "Internet carbook" in addition to the recent expansion of the distribution of the Internet, as well as the recent use of "Internet carbook", which is the word "Internet Carbook", which is the place of distribution of the Internet portal site, while using the same mark in many companies such as NAV and MM, etc., and it is difficult to distinguish the pending service mark from the pending service mark of this case, since it is hard to distinguish the pending service mark from the pending service mark of this case, "the registered service mark of this case is not suitable to allow a specific person to exclusively use it for public interest," and it is also difficult to distinguish the pending service mark from the pending service mark of this case, "the registered service mark of this case," which is the general service mark of this case, from the trademark of this case, "the general service mark of this case" under Article 6 (1) 3 and 7 of the Trademark Act.

[Evidence: Evidence No. 1, Evidence No. 1 to No. 3]

2. Whether the trial decision of this case is legitimate

A. (1) The grounds for cancellation of the plaintiff's argument (CFe) is that the plaintiff first started to use the terms less than the original restaurant's service mark selling coffee, liquor, etc. or that around May 199 as the name of online community service. At the time of February 15, 2003, the plaintiff used the name "Kafe" as the mark indicating the source of the designated service. However, since the plaintiff's patent application of this case was widely used and obtained well-knownness on around 204, the plaintiff applied for the trademark "(CAfe)" as the mark "(6) of this case's online service mark "(3) of this case's Kafe," which is the first place of online service as the name of online service (7) service mark of this case, "No. 9 of this case's Kafe" and "No. 1 of this case's online service mark is widely known as the result of the plaintiff's use of the service mark "No. 9 of this case's Kafe".

B. Determination

First, as to whether the applied service mark of this case falls under Article 6 (1) 7 of the Trademark Act, "a trademark other than those under subparagraphs 1 through 6 of Article 6 (1)" under Article 6 (1) 7 of the Trademark Act refers to a trademark that does not fall under any of subparagraphs 1 through 6 of the same Article but does not fall under any of subparagraphs 1 through 6 of the same Article, i.e., a trademark with no special distinction between its goods and others cannot be registered. Whether a trademark has a special distinction should be determined objectively by considering the concept of the trademark, the relationship with the designated goods, and the circumstances of the trade society (Supreme Court Decision 96Hu979 delivered on February 28, 1997). Whether the trademark has distinctiveness should be determined at the time of registration decision or decision of refusal.

The pending service mark of this case is a service mark of 10, 3, 4, 5, 5, 5, 5, 1, 5, 1, 3, 5, 5, 1, 5, 5, 5, 5, 1, 5, 5, 5, 5, 1, 5, 1, 5, 2, 5, 5, 5, 1, 5, 1, 5, 1, 5, 1, 5, 1, 5, 1, 4, 1, 2, 2, 5, 5, 1, 5, 1, 5, 1, 5, 1, 5, 1, 5, 4, 1, 1, 2, 1, 3, 1, 4, 1, 2, and 5, 5, 5, 1, 1, 4, 1, 2, and 4.

운 사람들의 공간, 카페 ( cafe ) 24, 카펜넷 ( CAFEEN. net ), 겜플 ( gample ), 소꿉 ( SOCOOP ) , 명지대학교, 관동대학교, 용인대학교, 건국대학교, 서울대학교 총동창회, 화학공학연구 정보센터, 부모넷, 사당종합사회복지관, 열린우리당, 전국교직원노동조합 광주지부, 한 국진보정치연구소, 진보누리, 홈카페 ( Home Cafe ), 중앙일보 17대 총선후보자 PR페이지, 일간스포츠, 국민일보, 스포츠투데이, 세계일보, 파이낸셜 뉴스, 지데일리, 한국디자 인진흥원, 자바카페 커뮤니티, 엠에스엔 ( MSN ) 카페, 온누리 카페, 나우 ( NOW ) 21 등 여러 회사나 공공기관 및 단체들도 2003. 경 이전부터 이미 ‘ 카페 ( Cafe ) ' 를 온라인 커뮤니티를 지칭하는 용어로 사용하여 왔던 사실, 포털사이트인 네이버는 2003. 12. 15. 부터 자신의 온라인 커뮤니티 서비스를 “ 카페IN " 으로 칭하면서 온라인 커뮤니티의 명칭으로 ‘ 카페 ( Cafe ) ' 를 사용한 후 이를 일반인들에게 대대적으로 홍보하기 시작하였고, 다른 포털사 이트인 엠파스도 2004. 3. 경부터 온라인 커뮤니티 서비스인 “ 엠파스 카페 " 의 서비스를 개시하면서 온라인 커뮤니티의 명칭으로 ' 카페 ( Cafe ) ' 를 사용하기 시작한 사실, 이에 2004. 경 무렵 각종 언론기사, 인터넷 게시판 등에서는 ' 카페 ( Cafe ) ' 가 원고의 ' 다음카페 ' 와는 관계없이 인터넷 포털사이트에 개설된 온라인 커뮤니티를 일반적으로 지칭하는 용어로 널리 사용되었던 사실을 인정할 수 있고 달리 반증이 없다 .

In light of the general concept of Kafe's "Kafe" and the actual use of Kafe's "Kafe", the service mark of this case, "Kafe", which is the service mark of this case, was generally used and recognized as an online community (Internet Kafe) referring to an online community (Internet Kafe) through which Internet users exchange various opinions and information on the Internet through mediating the same issues of interest, which is the date of the decision of refusal. Thus, the service mark of this case, which is the designated service, is "Internet User Access Control Industry, Electronic bulletin Board (BBS), BBS service, and letter and video transmission business using computers," which is the online community (Internet Kafe Kafe Peng) where each of the above designated service businesses is simply related to the above designated service business.

The service mark of this case is merely a part of the meaning that does not have a special distinction to identify whose service business the general consumers indicate. Accordingly, the service mark of this case falls under Article 6 (1) 7 of the Trademark Act.

The plaintiff argued to the effect that the plaintiff acquired distinctiveness through the use under Article 6 (2) of the Trademark Act since the use of the pending service mark of this case has been recognized as representing the online community service provided by the plaintiff among consumers. However, as seen above, the plaintiff called "DUM CAFe" and "CFe" have been used only for the term "individual community service established by the above service," and other portal sites other than the plaintiff and other public institutions and organizations have used the word "CAfe" to raise online community service. In light of the above, it is difficult to view that the plaintiff's online community service provided by the applicant service mark of this case was clearly perceived among consumers of the above service.

Therefore, the pending service mark of this case is a service mark which does not distinguish consumers from the service business, and which falls under Article 6 (1) 7 of the Trademark Act, and thus it cannot be registered as a service mark. Accordingly, the decision of this case is justified as long as it is concluded.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the trial decision of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Doing-type

Judges Kim Jae-hwan