B. Criteria for determining whether a trademark constitutes a trademark consisting solely of a mark indicating, in a common way, the quality, efficacy, use, etc. of the goods as stipulated in the legal provisions of Paragraph (a) above

C. Whether the trademark “DIGAL DIDRY” under the applied trademark “DIGAL DIDY” as designated goods constitutes a technical trademark under the legal provision of the A, which is not eligible for trademark registration (negative)

B. Whether a trademark constitutes a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of goods in a common way shall be determined objectively by taking into account the concept of the trademark, the common quality, efficacy, use, etc. of the designated goods in question, the characteristics of the designated goods in question, and the circumstances of the transaction society. Even if the trademark appears to indicate or emphasize the quality, efficacy, etc. of the designated goods, it does not constitute a case where general traders or consumers cannot be recognized as indicating the simple quality, efficacy, use, etc. of the designated goods in light of the overall composition of the trademark.

C. Examining the portion of the “DIARY” in the applied trademark “DIGAL DICR DIRY in relation to the electronic table calculator, designated goods, it may be recognized that it means “day, day, day, day, and day,” and in addition, a pocketbook, etc. for simple joint appearance. However, electronic table calculator, which is designated goods, is originally used for office accounting or simple scientific accounting, which is used as a semiconductord product, and is only an incidental function only for a specific item, and it cannot be viewed as a common efficacy of the designated goods. In light of the above, it is difficult to conclude that the “DIARY” portion directly indicates the common characteristics of the designated goods.

1. According to the reasoning of the original decision, the court below held that the original trademark is not registered under Article 8 (1) 3 of the former Trademark Act, on the ground that the composition of the original trademark is "DIGAL DIGAL DIGRY" and the designated goods are "DIGAL" on the premise that it is an electronic deposit calculation machine of the category 39 of the goods. The part "DIGAL" in the original trademark is recognized by the applicant himself/herself as not distinctive from the designated goods, and the part "DIGY" in the original trademark refers to a book carrying in his/her body and making simple records other than that of "day, day, day, day, etc." and it is being developed and used by a computation machine with function added to telephone numbers and academic formula other than the calculation function during the last transaction period. In light of the fact that the original trademark is used on the designated goods, it constitutes "DIGALALL" or "DIGALALL" on the ground that it constitutes technical registration under Article 8 (1) 3 of the former Trademark Act.

2. The purport of Article 8(1)3 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990) provides that "a trademark consisting solely of a mark indicating in a common way the origin, quality, raw material, efficacy, use, quantity, shape, price, method of production, processing, method of use, method of use or time of the goods is excluded from the trademark which can be registered "a trademark consisting solely of a mark indicating in a common way" does not entirely prohibit registration of the trademark consisting of the quality, efficacy, use, etc. of the goods, but it is prohibited from registration only in cases where the trademark expresses the quality, efficacy, effect, and purpose of the goods in common in a common way. It is determined that the trademark's use or effect does not constitute a common function of the designated goods, such as the sale of the goods in question is contrary to the public interest if anyone wishes to use it exclusively for a specific person, and that it does not constitute an ordinary meaning or function of the trademark, such as the trademark's quality and efficacy of the goods.

3. First of all, the part of the trademark "DGITAL" in this case can be seen as a mark indicating or emphasizing the character of an electronic calculator, which is the designated goods, because it has the meaning of "did type" and "in coefficient." However, when examining the part of the trademark "DIDY" in this part in relation to the designated goods, it can be recognized as meaning "one day, one day, and one day," and it can be recognized as meaning a simple pen for simple mail, but the electronic calculator, which is the designated goods, is used as a product of the original manual or a simple scientific calculation, and its function such as a simple calculator, etc. is merely an incidental function used only for a specific item, and it can not be viewed as a common function of the designated goods, which can not be viewed as a common function of the designated goods, in view of the view that the registered part of the trademark "DGY" cannot be viewed as a part of the designated goods that is used directly for the purpose of general consumers or consumers.

Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)