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The Commissioner of the Korean Intellectual Property Office

January 22, 2016

1. The decision made by the Intellectual Property Tribunal on May 6, 2015 (No. 2014 won5447) is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The applied trademark, service mark of this case

1) The date of international registration (the date of priority claim)/international registration number: April 26, 2013 ( October 26, 2012)/ (registration number 1 omitted)

2) Composition:

3) Designated goods and services: Business Manager Management, Business Management, Business Management, Business Management, Business Management, Business Management, and Business Management, Business Management, Business Management, and Business Management for Cos, Ltd. of Chapter IV of the classification of goods.

B. Details of the instant trial decision

1) On February 14, 2014, the examiner of the Korean Intellectual Property Office notified the Plaintiff of the grounds for rejection on the Plaintiff’s applied trademark or service mark of “The trademark or service mark of this case is indicated as to Elecry, Elecry, and Elecry, among the designated goods and services, in a common way as to the use of designated goods and services, time, and details of provision, and thus, cannot be registered pursuant to Article 6(1)3 and 7 of the Trademark Act” (Evidence 2), and the Plaintiff’s written opinion as of April 10, 2014, the final decision of rejection was made on August 12, 2014 (Evidence 3 of the Trademark Act).

2) On August 28, 2014, the Plaintiff filed a petition with the Intellectual Property Tribunal for an appeal against the foregoing decision of refusal (2014 won5447). On May 6, 2015, the Korean Intellectual Property Tribunal rendered the instant trial decision dismissing the Plaintiff’s appeal on the ground that “The trademark applied for trademark of this case is easily straighted with the meaning of “the trademark at issue” as a whole and “sparing,” etc., and simply combines marks indicating the purpose, time, details of the use, etc. with respect to the electric energy and the electric energy supply brokerage business among the designated goods, and such expressions are deemed to be electric energy recommended or advertised or advertised, and thus, they have no distinctive character.” Therefore, the Korean Intellectual Property Tribunal rejected the Plaintiff’s appeal (Evidence No. 4).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 4, purport of whole pleadings

2. Summary of the parties' arguments;

A. Grounds for revoking the trial decision of the plaintiff's assertion

1) Of the pending trademark in this case, “Charge” has a variety of meanings, and it cannot be said that ordinary consumers recognize it as meaning, and even if recognized as meaning, it cannot be viewed as directly indicating the nature of electric energy and electric energy supply contract brokerage business, which is the designated goods or service business of the pending trademark, even in the case of charging, filling, etc., the designated goods or service business of the pending trademark in this case. The pending trademark or service mark in this case consists of diagrams, colors, and letters in harmony and has sufficient distinctiveness as a whole.

2) Many trademarks, including “Charge,” are registered on goods similar to the designated goods of the applied trademark and service mark of this case, and trademarks, service marks including “Nhar” are also registered regardless of the designated goods and service business. Since the trademark and service mark of this case were registered in many countries, such as the United States, Japan, and Germany, it cannot be readily concluded that the applied trademark and service mark of this case consisting of diagrams, “Charge”, and “Now” have no distinctiveness.

3) Therefore, the pending trademark and service mark of this case do not constitute a trademark without distinctiveness under Article 6(1)3 and 7 of the Patent Act, and thus, the trial decision of this case, which was otherwise determined, is unlawful.

B. Defendant’s assertion

The applied trademark or service mark of this case is a combination of “Charge”, “bron,” and “Now” commonly used in the meaning of “Charge,” “bron,” “bron,” etc. It is easy to hold the trademark or service mark of this case as a whole “Char,” and “Shar filling,” etc. As such, the applied trademark or service mark of this case is a combination of marks indicating its use, time, contents, etc. in relation to the designated goods and service business, and is indicated by the simple combination of marks indicating the purpose, time, contents, etc. of the supply, and is recommended, advertised, or publicized as it falls under Article 6(1)3 and 7 of the Trademark Act. Therefore, the applied trademark or service mark of this case is not distinctive as it falls under Article 6(1)3 and 7 of the Trademark Act.

3. Determination

(a) Facts of recognition;

The following facts are not disputed between the parties, or acknowledged by comprehensively taking account of the overall purport of the pleadings as set forth in Gap evidence 7 through 10, Eul evidence 5 through 10, Eul evidence 26 and 28:

1) The marks used in relation to electric vehicles, charging stations, etc. include “(No. 5),” “(No. 6),” “(No. 7),” “(No. 8,” “(No. 9,” and “No. 10” as marks used in relation to the electric vehicles, filling stations, etc.

2) A trademark or service mark containing “Charge” or “Now” is registered or currently registered in the past as follows.

A person shall be appointed.

A person shall be appointed.

3) The applied trademark/service mark of this case was registered in the U.S., Germany, Hong Kong, Singapore, New Zealand, the European Union, Switzerland, Mexico, Mexico, Mexico, Norway, Russia, Turkey, etc. with the owner of the trademark/service mark or service mark as the plaintiff, the designated trademark/service mark holder, the designated trademark/service mark holder, and the registered service mark in Japan (Evidence A through A through 10).

4) At present, the Plaintiff is running a business related to the designated goods and services of this case using marks identical to the trademark and service marks of this case in the United States, the United Kingdom, Germany, France, Australia, Canada, Spain, Hong Kong, Turkey, etc. (No. 26 and No. 28).

B. Whether Article 6(1)3 of the Trademark Act is applicable

1) Criteria for judgment

Article 6(1)3 of the Trademark Act prohibits a trademark from being registered “a trademark consisting solely of a mark indicating the origin, quality, efficacy, use, etc. of goods in a common way” means a trademark indicating such character as required in the distribution process of goods and thus it is necessary for anyone to use it, and thus, if it is intended to use it, it is difficult to distinguish it from others’ like goods. Thus, whether a trademark constitutes it is a trademark shall be objectively determined in light of the concept, relation with the designated goods, the degree of ordinary consumers or traders’ understanding and awareness of the trademark, the situation of the trade society, etc., and if the trademark indicates the quality, efficacy, use, etc. of the designated goods, it does not constitute such case (see Supreme Court Decisions 2005Hu25964, Jan. 26, 2006; 205Hu2596464, Apr. 26, 2008).

In addition, the so-called combined trademark consisting of two or more constituent parts should be determined by the entire trademark consisting of the trademark (see, e.g., Supreme Court Decision 2014Hu2306, Feb. 26, 2015). Article 6(1)3 of the Trademark Act provides that a trademark consisting of a trademark "only" indicating the origin, quality, efficacy, use, etc. of goods in a common way cannot be registered. Thus, in order for a combined trademark consisting of a combination of several constituent parts, such as letters, diagrams, etc. to fall under the said provision, it is insufficient to determine whether a part of the constituent parts of the combined trademark falls under the said provision by itself, and the combined trademark should fall under the category of a trademark indicating the origin, quality, efficacy, use, etc. of goods in a common way.

On the other hand, Article 6(1) of the Trademark Act provides that "it may obtain trademark registration except for the trademark falling under any of subparagraphs of Article 6(1)." Thus, where a trademark registration is refused due to the reason that the applied trademark falls under any of subparagraphs of Article 6(1) of the Trademark Act, the person who asserts it.

2) Specific determination

A) The applied trademark or service mark of this case is combined with the English language “carge” or “Now” in which the shape of the electricity plug is devised. The trademark or service mark of this case, which is the text of the applied trademark or service mark of this case, is subject to a claim, complaint, obligation, etc., (liability, etc.), filling, and (defluence, order, and (defluences), may be avoided, and the trademark or service mark of this case is: (a) the English language with diverse intent, such as the amount of claim, charge, accusation, responsibility, order, freight, tax, etc., and (b) the term “carge” and the term “electric language with the intention of using the English language, such as this, is combined with the English language “Farge,” and it is generally possible to use it as a whole for the purpose of filling or supplying it to consumers, and (c) the term “electric energy, etc.” and (d) the meaning of the designated goods in this case, such as filling or arranging service business, and so doing.

B) Also, as examined in paragraph 3.c.2 below, the applied trademark or service mark of this case does not constitute a trademark or service mark which is not allowed to be used exclusively by a specific person because it is necessary or intended to be used by any person as it is necessary for the distribution process of goods.

C) Therefore, the evidence submitted by the Defendant alone cannot be deemed as constituting “a trademark consisting solely of a mark indicating the origin, quality, efficacy, use, etc. of goods and services in a common way” under Article 6(1)3 of the Trademark Act, and there is no other evidence to acknowledge it otherwise.

C. Whether it falls under Article 6(1)7 of the Trademark Act

1) Criteria for judgment

Even if a trademark does not fall under Article 6(1)3 of the Trademark Act, “a trademark which does not enable consumers to distinguish whose business it indicates goods” cannot be registered as a trademark (Article 6(1)7 of the Trademark Act). Whether a trademark falls under a trademark without distinctiveness shall be determined by taking into consideration the concept holding the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc., and where it is difficult to recognize the distinctiveness of the goods of the other person under the social norms or where it is inappropriate to allow a competitor to exclusively use the trademark for public interest, such as where it is difficult to recognize the distinctiveness of the goods of the other person

In addition, Article 6(1)7 of the Trademark Act cannot be deemed as having no distinctiveness solely on the ground that the applied trademark or service mark consists of several words or sentences. Furthermore, in a case where it is inappropriate to allow a specific person to exclusively use the applied trademark or service mark on account of the circumstances such as recognition of its source as an ordinary relief or advertisement in the trading society rather than indicating its source in relation to the designated goods or designated service business, the registration under the above provision should be refused (Supreme Court Decision 2005Hu2793 Decided November 29, 2007).

2) Specific determination

A) In light of the domestic registration cases of a number of trademarks and service marks, including “Charge” and “Now” recognized earlier, and the fact that the applied trademark and service mark of this case have been registered in a number of countries, regardless of their language and legal system, regardless of the circumstances alleged by the Defendant, it cannot be readily concluded that the circumstance and the submission of the circumstance and the evidence by the Defendant alone cannot be readily concluded as a trademark ‘trademarks and service marks of this case, which consist of figures, colors, and letters, as a whole, indicating goods related to any person’s business.

B) In addition, there is no evidence as to the fact that the applied trademark or service mark of this case is commonly used as a relief or advertisement in the trade society as a whole, and there is no evidence to regard the general consumers as such.

C) The applied trademark or service mark of this case is not used by the competitor in relation to the designated goods and service business until now, and there are no materials to regard it as being used in the future. The evidence submitted by the Defendant alone does not recognize that the applied trademark or service mark of this case needs to be used by anyone as a whole by indicating necessary in the process of distributing goods and service or that it wants to be used.

D) Rather, the applied trademark or service mark of this case is currently used worldwide as a trademark or service mark indicating the Plaintiff’s goods or service, and if it is freely used by a third party, it would cause consumers to confuse the source of goods or service provided with the said trademark or service mark as the Plaintiff, by causing consumers to misunderstand the source of goods or service provided with the said trademark or service mark attached.

E) Ultimately, the evidence submitted by the Defendant alone does not recognize that the applied trademark or service mark of this case constitutes “a trademark which does not distinguish a consumer’s goods related to a person’s business” under Article 6(1)7 of the Trademark Act, and there is no other evidence to acknowledge otherwise.

4. Conclusion

Therefore, the applied trademark and service mark of this case cannot be rejected under Article 6 (1) 3 and 7 of the Trademark Act. Thus, the decision of this case with different conclusions is unlawful, and the plaintiff's claim for revocation is justified, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Jeong Jong-young (Presiding Judge)