In a case where foreign companies Gap filed an application for the pending service mark " " with the Korean Intellectual Property Office examiner's decision to reject the registration of the above applied service mark on the ground that the above applied service mark falls under Article 6 (1) 3 of the Trademark Act, the case affirming the judgment below holding that the above applied service mark does not constitute a service mark consisting solely of a mark indicating in a common way the use of designated service business, the content

Article 6 (1) 3 of the Trademark Act

C. C.O. S.P. (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 201Heo12517 decided May 17, 2012

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

The grounds of appeal are examined.

Article 6 (1) 3 of the Trademark Act prohibits a trademark from being registered with a mark consisting solely of a mark indicating the origin, quality, efficacy, use, etc. of goods in a common way, because it is necessary for anyone to use the trademark as an ordinarily necessary mark in the process of distributing goods, and as such, it is difficult to distinguish a trademark from other goods of the same kind if it is permitted. Thus, whether a trademark constitutes a trademark shall be determined objectively by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc. (see Supreme Court Decision 2002Hu140, Aug. 16, 2004; Supreme Court Decision 2002Hu140, Aug. 16, 2004). Such legal principle likewise applies to a trademark or service mark under Article 2 (3) of the former Trademark Act (Amended by Act No. 1113, Dec. 2, 2011; Supreme Court Decision 2010Da12410, Jun. 13, 2019, 2014).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on the evidence of employment, and acknowledged that the "VIX" as the weak of "Vloatex" in various newspapers, papers, etc. at the time of the decision of this case and introduced the "S&P 500 index option" as "the number of sites for investment in the future 30 days change" or "public circulation index" in relation to the future 30 days change, but it is only the specific index that the plaintiff created and provided independently in relation to his service business, among the various change index, it cannot be deemed that the "VIX" is perceived or used as referring to the "change index" as a general economic language more wide meaning than the above specific index provided by the plaintiff to general consumers or customers. Further, the court below determined that the designated service business cannot be viewed as being in violation of the purpose of providing information on financial goods by means of the electronic media or printing media, which is the designated service business, and thus, it does not constitute the exclusive service mark of this case.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to Article 6 (1) 3 of the Trademark Act as alleged in the grounds of appeal.

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 Kim Chang-suk (Presiding Justice)