The case holding that where the applied service mark "" combined with the English word "infra" in red and the word "Care" in the color of "Care" constitutes a technical mark under Article 6 (1) 3 of the Trademark Act where it is used for the designated service business, such as the business of installing "computers", the business of maintaining and repairing computers and the business of leasing computers, etc.

The case holding that the applied service mark is a trademark consisting solely of a mark indicating the nature of designated goods under Article 6 (1) 3 of the Trademark Act, such as the purpose of use, purpose, etc. of the designated goods under Article 6 (1) 3 of the Trademark Act, on the ground that the applied service mark "if used in the designated service, such as the business of installing, maintaining, repairing, leasing, etc. of computer hardware," consisting of the English language and the applied service mark "Care in the form of a solid color," which consists of "Care," and the applied service mark "in the form of such designated service."

Article 6 (1) 3 of the Trademark Act

Mazyer Mazyer Co., Ltd. (Patent Attorney Kim Sung-gi et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

November 13, 2003

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on July 18, 2003 on the case No. 2003 Won294 shall be revoked.

1. Basic facts

In full view of the whole purport of the pleadings, the following facts are recognized in Gap evidence 1, Gap evidence 14-19.

A. Details of the pending service mark

(1) Composition; (Composition; Color trademark)

(2) The filing date/ the application number; October 24, 2000 / 2000-27530

③ Applicants; Plaintiff

(4) The designated service business; the same shall apply to the designated service business specified in attached Form (as amended on January 29, 2003).

B. The procedural background

(1) A decision of rejection

On December 31, 2002, the Korean Intellectual Property Office decided to reject the trademark registration on the ground that the trademark of this case is "management of infrastructure" and it constitutes "management of infrastructure" under Article 6 (1) 3 of the Trademark Act and "business of installing or arranging office equipment and maintaining or repairing computer," among the designated services (before amendment by January 29, 2003) is unclear and constitutes Article 10 of the Trademark Act.

(2) The instant trial decision (Patent Tribunal No. 2003 Won294)

(A) Plaintiff’s appeal, appeal, and result

On January 29, 2003, the plaintiff filed a petition for an appeal against the decision of refusal with the Korean Intellectual Property Tribunal, and filed an amendment to "business equipment installation brokerage business," "business of maintaining and repairing computer," "business of arranging the sale of office equipment," and "business of arranging the sale of computer cargo," but the Korean Intellectual Property Tribunal reviewed it as the case No. 2003 Won294 on July 18, 2003, and subsequently dismissed the plaintiff's appeal on the grounds as set forth in subparagraph (b) below.

(B) Summary of the trial decision of this case

The pending service mark of this case is a combination of ‘infra', ‘infra', ‘management or supervision', and ‘management or supervision of computer communications facilities' as a whole ‘management, supervision or ‘management or supervision of infrastructure', which is used for the purpose of ‘infras', ‘facilities and systems forming the basis of economic activities'. Thus, the pending service mark of this case is a combination of ‘infra', ‘management or supervision of computer communications facilities', ‘management or supervision of infrastructure' among the designated goods, if the pending service mark of this case is used for ‘the construction of computer database', ‘the connection business of communications networks different from the Internet', ‘the business of communications networks different from the Internet', ‘the business of communications networks', ‘the business of the designated service mark of this case', and ‘the business of installing office equipment' and ‘the business of maintaining computer repair and maintenance', and it is not clear that the designated service mark of this case belongs to the category 35 of the goods classification of the designated service mark of this case, and it is not clear that the designated service mark of this case belongs to the category 1 service mark of this case.

2. Whether the trial decision of this case is legitimate

A. Summary of the grounds for revocation of the Plaintiff’s trial decision

(1) Claim concerning Article 6(1)3 of the Trademark Act

(A) Even if "infra" is recognized as a summary of "indipure" among the pending service marks of this case, "indipure" is not only an abstract and difficult word at a university level, but also an extensive scope of its use. Among the pending service marks of this case, "Cre" is not used or directly used in managing and supervising the subject, and even if the meaning of "indipure management" is derived, it cannot be used in a sense that it operates a large and complicated infrastructure. Accordingly, the pending service mark of this case where "indipure" is combined with "indipure" is not a specific word since it has been created by the plaintiff and has no mutual connection with it. In addition, it is not meaningful to say that the designated service mark of this case is not the subject of "management service business" but the subject of "management service business" of the designated service mark of this case.

(B) Of the pending service marks in this case, the term "infra" consists of a red-frash character, which consists of the two colors, and is trhythizing about 20∑ in the right side, and the end of the first alphab, the end of the alphab, leading the tag, leading the word "i", leading the alpha, leading the unfolded image, and the back part "Care" is not applied to black body but is composed of a solid image equally and equally composed. Since it is a color mark that is devised to provide a strong preparation against the rear part in its overall composition, it does not constitute a mark indicating the characteristics of the designated goods in a common way.

(C) The instant pending service mark is registered in a number of foreign countries, and each of the trademarks containing ‘infra' and ‘Cre', the constituent parts of which are ‘infra' and ‘Cre', is also registered, and the instant service mark is likely to be used by others, and there is no reason for the public interest to refuse its registration. Thus, the instant service mark should be registered.

(2) Claim as to Article 10 of the Trademark Act

In the designated service business of the pending service mark of this case, the term "business equipment installation brokerage business," and "business of maintaining and repairing computer," which were revised on January 29, 2003 as the "business equipment sales brokerage business" and "business of arranging the sale of computer," but were revised on January 29, 2003, it is unreasonable to determine that the service mark of this case constitutes a violation of Article 10 of the Trademark Act on the ground that it constitutes another category.

(b) Markets:

(1) Whether it falls under Article 6 (1) 3 of the Trademark Act

According to Article 6 (1) 3 of the Trademark Act, a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of designated goods in a common way shall not be registered. The purport of the above provision is not only the case where a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of designated goods in a common way is lost the function of distinguishing the goods because it is a technical mark indicating the characteristics of the goods in a common way, but also the case where a trademark loses the function of distinguishing the goods. Even if there is the function of distinguishing domestic goods, it is not reasonable in the public interest to exclusively use it only for a specific person as it is necessary for the transaction of goods. Whether a trademark constitutes a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of the designated goods in a common way shall be determined objectively in consideration of the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc.

Therefore, the trademark in this case is widely used as the meaning of "infra" in the English language and the word "Care" in red color, and the word "infra" in this case is a combination of "cather", and the word "infra" in the meaning of "infra", "infra", "infra" (see evidence 1-1, 3, 4) or "infraure", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management", "computer management" and "computer management", "management", "computer management" as a whole, "computer management" (see evidence 2, 3, evidence 4-1, 2, 5, 6).

Therefore, if the pending service mark of this case is used in the designated service, "the installation, maintenance, repair, lease, etc. of computer hardware" is used in the designated service, "information technology project management, computerized database construction, connection service with the Internet and other computerized telecommunications networks", "the management of information technology project, the establishment of database necessary for supporting data processing, and the management of connection and connection with the computerized telecommunications networks different from the Internet". Thus, if the pending service mark of this case is used for the designated goods, it is directly connected to the designated goods of this case, it shall be a trademark consisting solely of a mark indicating the nature of the designated goods of Article 6 (1) 3 of the Trademark Act in a common way, and therefore, it is not reasonable that any person exclusively uses the trademark of this case as an indication necessary for the transaction of the goods of this case for the exclusive use by a specific person in a public interest.

In this regard, the plaintiff emphasizes the image compared by different body and color of "infra" and "Cre" of the front and rear part of the service in this case, and argues that since the "infra" is an excellent service mark, it does not constitute a mark indicating the characteristics of the designated goods in a common way, it does not constitute a mark indicating the characteristics of the designated goods in a common way. However, when the trademark in this case is observed as a whole, it is difficult to see that the level of the design of this case is beyond that of the general public so that it is difficult to directly understand the technical or explanatory meaning of the letter as long as the level of the design of this case leads to the attention of the general public, it can be easily recognized by the general public as a "infrare" or an "infrastructure management." Therefore, the above argument is without merit.

The plaintiff also asserts that the trademark of this case, including the applied trademark of this case and the trademark "infra" and "Care, are registered in the Republic of Korea and abroad, shall be registered since it is a trademark with distinctiveness. However, whether the trademark is registered shall be judged independently as to each trademark's designated goods, and it shall not be determined by whether the trademark is registered or not. Thus, the above argument is without merit.

(2) Sub-committee

Thus, as long as there are grounds for rejection of registration falling under Article 6 (1) 3 of the Trademark Act on the applied trademark of this case, the decision of this case dismissed the plaintiff's appeal for rejection without examining the remaining grounds for rejection of registration.

3. Conclusion

Therefore, the plaintiff's claim 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 Of Kimchi (Presiding Judge)