[1] Requirements and the time of determination to constitute a trademark for unlawful purposes under Article 7 (1) 12 of the Trademark Act (=the time of application for the registered trademark)

[2] Whether a trademark filed by imitateing a cited trademark which is neither widely nor well-known constitutes Article 7(1)4 of the Trademark Act (negative), and whether the determination of whether a trademark is based on the domestic standard (affirmative)

[3] The time to determine whether a trademark falls under Article 7 (1) 4 of the Trademark Act (=the time when the trademark registration is decided)

[1] For a trademark to constitute an unlawful purpose under Article 7 (1) 12 of the Trademark Act, the subject trademark shall be a well-known trademark which is remarkably recognized as a trademark of a specific person between domestic or foreign consumers. Whether the subject trademark is an well-known trademark or not shall be determined at the time of application for the trademark.

[2] "Trademarks which are contrary to the public order or good customs" under Article 7 (1) 4 of the Trademark Act refers to a trademark itself or in cases where the trademark is used on the designated goods and their meaning or contents to the general consumers are contrary to the public order or good customs, which is the normal moral sense of the general public. If the subject trademark is not well-known or well-known, it is not sufficient that the subject trademark itself itself constitutes Article 7 (1) 4 of the Trademark Act, and it does not mean that the subject trademark is well-known or well-known in Korea.

[3] Whether it falls under Article 7 (1) 4 of the Trademark Act shall be determined at the time of decision on trademark registration.

[1] Article 7 (1) 12 of the Trademark Act / [2] Article 7 (1) 4 of the Trademark Act / [3] Article 7 (1) 4 of the Trademark Act

[2] [3] Supreme Court Decision 2001Hu1358 decided Dec. 10, 2002 / [2] Supreme Court Decision 96Hu2296 decided Oct. 14, 1997 (Gong1997Ha, 3467) Supreme Court Decision 97Hu228 decided Nov. 28, 1997 (Gong1998Sang, 107), Supreme Court Decision 97Hu1306 decided Feb. 24, 1998 (Gong198Sang, 98Sang, 97Hu3623 decided Dec. 24, 199 (Gong200Sang, 309); Supreme Court Decision 97Hu8697 decided Apr. 21, 200; 209Hu28979 decided Feb. 26, 209; 209Hu298497 decided Feb. 24, 2009)

Plaintiff

DIL, EETNE (Law Firm Central Law Firm, Attorneys Lee E-soo et al., Counsel for the plaintiff-appellant)

Patent Court Decision 2002Heo505 delivered on June 21, 2002

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

The grounds of appeal are examined.

1. As to Article 7(1)12 of the Trademark Act

Article 7 (1) 12 of the Trademark Act does not allow a registration of a trademark which is recognized remarkably as a trademark of a specific person between domestic or foreign consumers (hereinafter referred to as "subject trademark") because it causes damage to an owner of a trademark right by causing damage to the owner of a trademark right or impeding the business in the Republic of Korea of the owner of the trademark right by using the trademark which is recognized as a trademark of a specific person in the Republic of Korea after registering and using the trademark which is copied by a third party, or by impeding the business in the Republic of Korea of the owner of the trademark right, or by using the trademark for the purpose of unjust profits by using such imitate trademark, the subject trademark shall be a well-known trademark which is recognized as a trademark of a specific person among domestic or foreign consumers. Whether the subject trademark is authorized shall be determined at the time of application for the trademark.

The court below acknowledged that the target trademark was imported and sold around September 1999, which was registered in France on December 12, 1995, and around 197. The target trademark was sold from February 1997 to products with the target trademark, and its advertising advertising period remains for about 3 and 4 years. The target trademark's size and export amount exported in Europe and Asia around 1998 to 1,818,000, 1,905, 612 U.S. (EUOS) and there were no errors in the misapprehension of legal principles as to the trademark's domestic or foreign consumers at the time of application of the registered trademark, and there were no errors in the misapprehension of legal principles as to the facts-finding and sales period, and there were no errors in the misapprehension of legal principles as to the trademark's domestic or foreign consumers at the time of application of the registered trademark.

2. As to Article 7(1)4 of the Trademark Act

In Article 7 (1) 4 of the Trademark Act, "trademarks which are contrary to the public order or good customs" refers to cases where the composition of the trademark itself or where the trademark is used for the designated goods, their meaning or contents to ordinary consumers are contrary to the public order and good customs, which is the ordinary moral sense of society. If the subject trademark is not well-known or well-known, it shall not be deemed to fall under Article 7 (1) 4 of the Trademark Act merely because the subject trademark is copied, and the subject trademark is well-known or well-known in Korea (see Supreme Court Decisions 9Hu451 delivered on July 9, 200, 9Hu169 delivered on August 23, 200, and 99Hu169 delivered on August 23, 200), and whether it falls under Article 7 (1) 4 of the Trademark Act shall be determined at the time of the decision to grant trademark registration (see Supreme Court Decision 200Hu1381 delivered on May 13, 2001).

As seen earlier, the lower court determined to the effect that the registered trademark of this case, which is identical with or similar to the subject trademark, cannot be deemed to be a well-known or well-known trademark as a defendant’s trademark at the time of application for the registered trademark of this case, cannot be deemed to contravene public order or good customs.

The court below's decision on the issue of whether a trademark falls under Article 7 (1) 4 of the Trademark Act is unlawful at the time of filing an application for trademark registration. However, in full view of the facts and records recognized by the court below, "INX International Co., Ltd." operated by the non-party 1 entered into an exclusive import and sale contract with the defendant's Hong Kong branch office on July 12, 199, and imported and sold the subject trademark in Korea. The above "INX International Co., Ltd." was held on September 199, 199, and it was not erroneous in the misapprehension of legal principles as to "the third Korean Co., Ltd. and promotional products" and "SF AIR" held on Oct. 10, 199, which did not fall under the above 197, but did not fall under the above 90, 190, 200, 199, 19, 20, 190, 20.8, 199.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the defendant who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Byun Jae-chul (Presiding Justice)