2014Hu2306 Decision of Refusal (Trademarks)

Sylla MBE

Attorney Il-il Patent et al., Counsel for the defendant-appellant and two others

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2014Heo2344 decided September 19, 2014

February 26, 2015

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

In the case of so-called a combined trademark composed of two or more constituent parts, the trademark

Determination as to whether there is distinctiveness by the entire composition (Supreme Court Decision 192 February 11, 1992)

See Supreme Court Decision 91Hu1427, Supreme Court Decision 94Hu616, Oct. 28, 1994, etc.). Meanwhile, the Trademark Act

Article 6(1)3 only with a mark indicating in a common way the shape of the goods.

Any trademark shall not be registered as a trademark, and any other distinctive character in three-dimensional shape shall not be registered.

Trademark registration may be obtained for a trademark combined with a sign, letter, figure, etc.

It does not stipulate that the trademark contains a three-dimensional shape of the trademark.

Corresponding the sign, text, figure, etc. combined with this, and only three-dimensional shapes are distinctive;

There is no provision in the Trademark Act that the determination must be made. In addition, the three-dimensional shape without distinctiveness is a three-dimensional shape.

Even if a trademark containing the trademark is recognized to have a distinctive character as a whole, a distinctive character;

Since a three-dimensional shape without a trademark right has no effect (Article 51(1) of the Trademark Act)

(B) by allowing the registration of such trademark to be made on a three-dimensional form with no distinctive character;

The effect of the right to vote is expanded and thus it is likely to result in unfair consequences that restrict the use of others.

(2).

Considering these points, a trademark consisting of three-dimensional shapes, symbols, letters, diagrams, etc.

in determining its distinctive nature, it is not viewed differently from other general combined trademarks; and

A combination of three-dimensional shapes themselves with symbols, letters, diagrams, etc. with distinctiveness, even though they do not have distinctiveness.

as a whole, constitutes Article 6(1)3 of the Trademark Act, etc. with regard to a trademark with distinctiveness as a whole.

trademark registration should not be refused on the ground that it is.

The court below is the same as the right side where "h joint and several balls (it can be seen as artificial high balls) are designated as the designated goods.

The trademark of this case (international registration number omitted) consists of half-gu shapes in which the nests are formed on the pending trademark (international registration number omitted)

The three-dimensional shape of the designated goods shall be marked in a common way with the shape of the designated goods.

Since it is a starting mark, there is no distinguishability, and doping part is a common color that can be generally seen.

Note also has no distinctive character, and is combined with this.

A person shall be appointed.

In the case of a part, 'IOLX delta' is designated

Technical significance indicating the nature, etc. in relation to the goods;

Undistinctiveability as a trademark, non-existent

Thus, the trademark of this case as a whole.

For distinctive character, Article 6 (1) 3 of the Trademark Act

The Court determined that it was not reasonable.

In light of the above legal principles and records, the above judgment of the court below is just and there is a ground for appeal.

As alleged in the grounds, there is no error of misapprehending the legal doctrine regarding distinctiveness of a trademark.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is decided by all participating Justices.

It is decided as per Disposition by the assent of all participating Justices.

Justices Jo Hee-de

Justices Lee Sang-hoon

Justices Kim Chang-suk