A. Purport of Article 8(1)3 of the Trademark Act

(b) Criteria for determining whether a trademark has become only a mark indicating the quality, efficacy, use, etc. of the good;

A. The purport of Article 8(1)3 of the Trademark Act is that, in light of the consumer’s social concept, a trademark expressed solely on the basis of common quality, efficacy, use, etc. of the pertinent goods cannot be used exclusively for a specific person, and such trademark does not have a special character that can distinguish the relevant goods from other goods.

B. Whether a trademark constitutes only a mark indicating the quality, efficacy, use, etc. of the designated goods in a common way shall be determined according to the trade situation of the goods in Korea. Even if the trademark appears to indicate, or emphasize the quality, efficacy, and use of the designated goods, it shall not be deemed that the general trader or consumer can not be recognized as indicating the quality, efficacy, and use of the designated goods, in light of the overall composition of the trademark.

Article 8 (1) 3 of the Trademark Act

A. Supreme Court Decision 79Hu56 delivered on April 8, 1980, 86Hu1 delivered on September 9, 1986. Supreme Court Decision 86Hu69 delivered on September 23, 1986

Josonnson’s Patent Attorney Lee Byung-ho, Attorneys Kim Sang-ho et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 251 dated March 16, 1987 (Section 251) No. 1986

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal by the attorney of the applicant are examined.

According to the records, the original trademark is a combination trademark consisting of a figure with an English person called "no, specialized manufacturer, etc.", and its designated goods are shampoos and moos in category 13 of the product classification table. The original trial decision shows that, for that reason, there is a concept that "on the ground that "if there is no snow any snow" is found in the pre-fluence, the trademark "on the ground that there is no snow". In this case, if the designated goods of this case are related to the designated goods of this case, the possibility that the shampoos and moos are directly manufactured so that they do not sampoos or moos do not go through snow, and even if the shape is attached to the original trademark with the same figure and text as the original trademark, the letters are more strongly recognized to consumers than the figure above the original trademark, so if the original trademark is used in the designated goods, the original trial decision constitutes a trademark indicating the nature of the original trademark, and thus, it is dismissed by its judgment of rejection.

However, Article 8 (1) 3 of the Trademark Act provides that a trademark cannot be registered only with a mark indicating in a common way the origin, quality, raw material, efficacy, use, quantity, shape, price, production method, processing method, use method, or time of the goods can not be used exclusively for any specific person according to the consumer's social concept. Such a request for public interest is without a special distinction that can distinguish the goods from other goods (see, e.g., Supreme Court Decisions 86Hu1, Sept. 9, 1986; 79Hu56, Apr. 8, 1980; 79Hu56, Apr. 8, 1980). Whether a trademark merely consists of a mark expressing the quality, efficacy, use, etc. of the goods in a common way, shall be determined according to the consumer's trade situation in Korea, and it can not be determined by the trademark, and it appears that the trademark can not be used exclusively for any specific person after being aware of the common quality, efficacy, or use of the goods.

본원상표에 들어있는 영문자 "no more tears"가 원심결이 설시한 바와 같이 암시적 의미를 지닌 것이라 하더라도 위 영문자는 본원상표 도형중 상단도형안에 조그맣게 기재되어 있는 것이고, 그래서 도형과 문자가 결합된 본원상표의 표장을 전체로 파악할 때 이것이 수요자의 입장에서 지정상품에 대한 일반적 공통적인 품질, 효능, 용도로 인식되어 있거나 인식될 것이라고는 보기 어렵다 할 것이다(기록에 의하면, 본원상표가 상품구분 제12류 화장품류에 대하여는 상표등록이 되어 있음을 엿볼 수 있다).

Therefore, the court below's decision that the original trademark cannot be seen as being harming the public interest because it is difficult to recognize the identification power of the designated goods in the transaction, or the exclusive use of the original trademark cannot be seen as harming the public interest. Thus, the court below erred by misapprehending the legal principles under Article 8 (1) 3 of the Trademark Act, which affected the conclusion of the decision. The appeal pointing this out is justified

Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Man-hee (Presiding Justice)