권리범위확인(상)
The judgment below is reversed, and the case is remanded to the Patent Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. According to the reasoning of the lower judgment, the lower court determined that the instant trademark subject to confirmation falls under the scope of the right of the registered service mark (registration number) of this case, on the ground that the part of “private source,” which constitutes the trademark subject to confirmation (hereinafter “trademark subject to confirmation of this case”), does not constitute a conspicuous geographical name, and thus, there is no reason not to affect the effect of the right to registered service mark of this case.
The registered service mark of this case is designated (use) service business that constitutes a trademark subject to the confirmation of this case and an exclusive restaurant business that is specialized in air conditioners and exclusive restaurant business in Chapter 43 classified as service business category.
2. Judgment of the Supreme Court
A. A trademark consisting of a conspicuous geographical name does not have the effect of trademark rights [Article 51(1)3 of the former Trademark Act (wholly amended by Act No. 14033, Feb. 29, 2016; Article 90(1)4 of the current Trademark Act also provides for the same purport]. The purport of the aforementioned provision is to allow a person to freely use the trademark and not to grant a right to exclusive use only to a certain individual, given that the distinctiveness of the trademark cannot be recognized due to its apparentness and well-knownness.
(see, e.g., Supreme Court Decision 98Hu1518, Nov. 26, 1999). Here, “low geographical name” refers to the geographical name widely known to ordinary consumers.
Whether a geographical name can be seen as remarkable shall be determined reasonably in comprehensive consideration of various circumstances that may affect general consumers' awareness, including textbooks, press reports, surveys, etc.
This legal principle applies likewise to service marks.
B. According to the reasoning of the lower judgment and the record, the following facts are revealed.
(1) Sariwon is located in the Yellow Sea Islands from North Korea.