[1] The method of determining whether a trademark is a trademark indicating the raw material of the product

[2] The case holding that the registered trademark " " constitutes a trademark with the raw material indication of "fishbed" as the designated goods

[3] Where a trademark acquires distinctiveness by using a trademark pursuant to Article 6(2) of the Trademark Act, whether a similar trademark acquires distinctiveness (negative)

[1] Article 6 (1) 3 of the Trademark Act / [2] Article 6 (1) 3 of the Trademark Act / [3] Article 6 (2) of the Trademark Act

[1] Supreme Court Decision 89Hu667 delivered on December 8, 1989 (Gong1990, 263) Supreme Court Decision 2002Hu192 Delivered on May 13, 2003 (Gong2003Sang, 1367) Supreme Court Decision 2004Hu3454 Delivered on April 27, 2006 (Gong2006Sang, 967) / [3] Supreme Court Decision 2005Hu339 Delivered on May 12, 2006 (Gong2006Sang, 1074)

Gyeongwon Industrial Co., Ltd. (Patent Attorney Choi Jae-soo et al., Counsel for the defendant-appellant)

(1) The court below's decision that the court below's decision that the court below's decision that the court below's decision was justified

Patent Court Decision 2004Heo8701 Decided April 29, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 2

Whether a trademark indicates the raw material of a product should be objectively determined in light of the concept of the trademark, its relationship with the designated product, and the actual trade society. Thus, in a case where a trademark is actually used as a raw material of the designated product or where a general consumer or a trader recognizes that it is used as a raw material of the product, the trademark can be deemed to indicate the raw material of the product (see Supreme Court Decisions 2002Hu192, May 13, 2003; 2004Hu3454, April 27, 2006, etc.).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that the term "glue" was used as the material of the instant registered trademark (registration No. 45988) prior to the date of the decision to register the instant registered trademark (registration No. 45998) and at least around October 1999, the term "glue" was used as a general name among employees or consumers of the fishing industry in the Republic of Korea, and the general consumers were aware of the term "glue" as the raw material of the designated goods, so the registered trademark of this case composed of "glue" constitutes a trademark indicating the raw material of the "glueb", which is the designated goods. In light of the above legal principles and records, the judgment of the court below is just, and it is not erroneous in the misapprehension of

2. As to the third ground for appeal

Article 6(2) of the Trademark Act provides that “The trademark, as a result of the use of the trademark, is recognized remarkably among consumers as indicating whose goods it indicates in connection with his/her business,” is the trademark itself used and the trademark similar thereto does not acquire distinctiveness (see Supreme Court Decision 2005Hu339, May 12, 2006). Even if a trademark “” (Registration No. 424782, May 12, 2006) acquired distinctiveness by use, it is natural in light of the above legal doctrine that the trademark of this case does not acquire distinctiveness even if it is so similar.

In the same purport, the court below is just in holding that the registered trademark of this case is difficult to be deemed to have acquired distinctiveness through the use under Article 6 (2) of the Trademark Act. The court below did not err in the misapprehension of legal principles as to the acquisition of distinctiveness by

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)