The case holding that the registration of the registered service mark " is valid, recognizing the distinctiveness of the telephone communications business and the radio communications business among the designated services since the general consumers and traders came to recognize the source of a service as a person's service with respect to the telephone communications business and the radio communications business by the use of the applicant.

The case holding that, with respect to telephone communications business and radio communications business among designated services, registration is valid by recognizing the distinctiveness of a registered service mark "(sPED)" and a registered service mark "(s) in which the English language word "SPED" and a third party(s) of the Arabic number are written horizontally, and "(s)" are objectively examined only in terms of the concept or the relationship with the designated service business, etc., without distinctiveness, on the ground that the use by an applicant came to recognize the source of a service of a person(s) in relation to telephone communications business and radio communications business.

Article 6 (1) 7, Paragraph (2) of the Trademark Act

KS Telecom Co., Ltd. (Attorney Yu Young-il et al., Counsel for the plaintiff-appellant)

KPel Co., Ltd. (Law Firm Subdivision, Attorneys Masung-si et al., Counsel for the defendant-appellant)

December 3, 2004

1. The Korean Intellectual Property Tribunal’s decision on May 19, 2004 regarding the telephone communications business and radio communications business among the designated service marks of No. 51365, which was rendered by the Intellectual Property Tribunal, shall revoke the part regarding the registered service.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

The decision made by the Intellectual Property Tribunal on May 19, 2004 on the case No. 2003Da2485 is revoked.

1. Details of the instant trial decision

【Evidence: The descriptions of evidence Nos. 1, 2, and 3, and the purport of the whole pleadings】

A. Registered service mark of this case

(a) Registration number: No. 51365;

(2) Date of application/registration date/registration date/registration date: October 2, 1997/ October 23, 1998/24 December 1998

(3) Composition:

(4) Designated service business: Article 6 (2) [Attachment 2] [Attachment 2] of the former Enforcement Rule of the Trademark Act (amended by the Ordinance of the Ministry of Trade, Industry and Energy No. 83 of February 23, 1998) and Article 6 (2) [Attachment 2] 106 of the classification of service business.

B. Details of the instant trial decision

The Defendant filed a petition for an invalidation trial against the Plaintiff on the ground that the registered service mark of this case was registered in violation of Article 6(1)7, Article 7(1)1, 7(1)4, and 11 of the Trademark Act. The Korean Intellectual Property Tribunal deliberated the above case on May 19, 2004 as 203Dang2485 and decided on May 19, 2004, the term "011" in the registered service mark of this case cannot be deemed as a service mark identical or similar to seals or signs used for certification by the State or public institutions, and even the number assigned and managed by the Minister of Information and Communication cannot be deemed as a violation of public order or good customs, and it cannot be deemed that the meaning or content of the registered service mark of this case to be known to the extent that it could be perceived as a service mark or service of a specific person other than the respondent (the Plaintiff), and thus, it cannot be deemed as a "the designated service mark of this case" of this case for the exclusive use of the registered service mark in violation of Article 7(1)1) of the Trademark Act.

2. Whether the trial decision of this case is legitimate

A. The distinctiveness of the registered service mark of this case

(1) Whether the composition of the instant registered service mark itself has distinctiveness

The Plaintiff asserted that the “SPED” of the registered service mark of this case is an indirect expression of the quality or efficacy of radio communications, and it is hard to see that it is a direct expression of the quality or efficacy of radio communications, and that the “011” also has distinctiveness as a numer 3 person, and thus, the registered service mark of this case combined by it has distinctiveness as a whole. As to the Defendant’s assertion that the “SPED” of the registered service mark of this case constitutes a technical mark indicating the quality or efficacy of the service in the communications business where speed takes life, and thus, has no distinctiveness as it constitutes a technical mark indicating the quality or efficacy of the service, and that the “011”, which is a communications network identification number, cannot be

The registered service mark of this case is a combined service mark with the English language "SPED" and the Arabic figure 01 "01" written horizontally. The registered service mark of this case is a "radio call service, telephone communications, telegraph communications, telegrapher communications, telegrapher communications, telegrapher communications, computer network service, and public enterprise telecommunications network service using electricity." Thus, even if the speed of radio waves is equal, there may be a problem of transmission after the connection of radio waves. In particular, since the connection of the above services is an important factor in the nature and quality of the above services, it is difficult to see that the designated service mark of this case is in combination with the above English language service, the designated service mark of this case cannot be seen as a new service mark that is not recognizable to consumers, but can not be seen as a new service mark that cannot be seen as being in combination with the above new service mark.

(2) Whether the registered service mark of this case acquired distinctiveness by use

However, the Plaintiff asserts that the registered service mark of this case was used in its designated service business and had already acquired distinctiveness at the time of its registration ruling. Accordingly, the Defendant at all times asserted that Article 6 (1) 7 of the Trademark Act applies to a communication network identification number that has public interests, and that the use of the service mark cannot be recognized as its distinctiveness, as there is no room for applying Article 6 (2) of the Trademark Act.

On the other hand, Article 6(1)7 of the Trademark Act provides that "a trademark other than those as referred to in subparagraphs 1 through 6, which does not enable consumers to distinguish whose goods it indicates in connection with a person's business," and this provision provides that even if a trademark does not fall under any of subparagraphs 1 through 6, a trademark with no special distinction between its own trademark and another person's trademark cannot be registered, that is, a trademark with no special distinction, shall not be registered. The meaning of the trademark itself means a trademark with no distinguishability or its use should be open to all persons, so it seems to the purport that the registration is not permitted because it is not appropriate to allow a certain person to exclusively use the trademark (see Supreme Court Decision 94Hu906 delivered on September 27, 1994). The public interest of which no person is allowed to use as alleged by the defendant is a matter of distinctiveness under Article 6 of the Trademark Act, but a matter of non-permission under Article 7 of the Trademark Act.

In addition, even if a mark appears to have no distinctiveness when objectively seen without considering its use state and only the relationship with the designated service business, if the applicant's use of the mark leads to the consumer or trader's recognition of the mark as indicating service business related to a person's business as a result of the applicant's use of it, barring special circumstances, it shall not be deemed to constitute a service mark with no special distinction under Article 6 (1) 7 of the Trademark Act, and thus its trademark may be registered (see Supreme Court Decision 2001Hu2863, Jul. 11, 2003).

Furthermore, according to the above facts of the Plaintiff’s 1, 9-1, 10-1, 9-2, 23, 26, 27, and 11-5, 64, 68, 76, 89, 92, 96, 101 through 113, 120, 122, 124 through 136, 148, 147, 177, and 9-17, the Plaintiff’s registered service mark 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 9-1, 97, 9-1, 9-2, and 9-1, 167, 197, 167, and 17-17.

(3) Therefore, the registered service mark of this case, except for the telephone communications business and the radio communications business, among its designated service, shall not be deemed to have any other distinctive character as provided by Article 6(1)7 of the Trademark Act without considering the Defendant’s other grounds for registration invalidation, and shall be deemed to be null and void by Article 71(1)1 of the Trademark Act.

B. Whether Article 7 (1) of the Trademark Act is violated

Furthermore, the defendant's remaining invalid places for telephone communications business and radio communications business among the designated service business of the registered service mark of this case are examined in order.

(1) Determination as to Article 7(1)1 of the Trademark Act

The defendant asserts that since the identification number of communication network such as "01" is a mark managed by the State, which constitutes a mark for supervision or certification, or at least equivalent thereto, the registered service mark of this case cannot be exempted from being invalidated as it falls under Article 7 (1) 1 of the Trademark Act.

However, Article 7 (1) 1 of the Trademark Act provides that the reason for non-registration of a service mark under Article 7 (1) 1 of the Trademark Act is high in the level of dignity in terms of public interest, and thus, if the subject of the application for registration of a service mark is not a person, it cannot be registered as a service mark (see Supreme Court Decision 96Hu1774 delivered on June 13, 1997). Even if the management authority of the above communication network identification number is the Minister of Information and Communication, such circumstance alone cannot be deemed as a seal or a mark for supervision or certification, and the above argument by the defendant is without merit.

(2) Determination as to Article 7(1)4 of the Trademark Act

Next, the defendant asserts that the act of the plaintiff's exclusive use of the registered service mark of this case with the identification number of a communications network does not violate the order of the Telecommunications Business Act and thus, it violates the public order or good customs, and thus, the registered service mark of this case should be invalidated as it constitutes a violation of Article 7 (1) 4 of the Trademark Act, since it constitutes a violation of the public order or good customs, since it constitutes a violation of the order of the Telecommunications Business Act, thereby nullifying the national policy and public interest, the fair and reliable commercial transaction order as a general society order, and the order of the tort Act.

However, "trademarks which are contrary to the public order or good customs" under Article 7 (1) 4 of the Trademark Act refers to a case where the composition of the trademark itself or the meaning or contents that the trademark gives to the general consumers in the event that the trademark is used for its designated goods are against the public order or good customs, which is the normal moral sense of the general public (see Supreme Court Decision 9Hu451 delivered on July 9, 2002). Thus, the application, registration, and use of the registered service mark of this case are not in violation of the Telecommunications Business Act order, and it is difficult to see that the application, registration, and use of the registered service mark of this case are in violation of the Telecommunications Business Act order, and it cannot be viewed as being contrary to good customs or social order.

(3) Determination as to Article 7(1)11 of the Trademark Act

In addition, the defendant argues that the registered service mark of this case is a service mark which might cause consumers to misunderstand the quality of the "goods" under Article 7 (1) 11 of the Trademark Act, because the registered service mark of this case is a service mark which is likely to cause consumers to mistake the quality of goods because the composition itself of the designated service is different from the nature of the designated service business, and it means a service mark which is likely to cause consumers to mistake the quality of the designated service business, and it is difficult to see that the defendant's assertion that there is no concern for consumers to use the designated service business on the sole basis of the reasons asserted by the defendant to believe that there is no concern that the above registered service mark might cause consumers to misunderstand the quality of the designated service business, and therefore, it cannot be said that there is no concern for consumers to use the designated service business as provided by Article 7 (1) 11 of the Trademark Act.

3. Conclusion

Therefore, the decision of this case is just only with respect to the designated service business other than telephone communications business and radio communications business among the designated service business of the registered service mark of this case, and it is unlawful with respect to the above designated service business. Therefore, the decision of this case is revoked only with respect to this part, and the remaining claim of the plaintiff is dismissed as it is without merit.

Judges Lee Jae-hwan (Presiding Judge)