[1] The meaning of "a trademark indicated by ordinary means" under Article 51 (1) 2 of the Trademark Act

[2] The case holding that the registered trademark “” is not effective against the challenged mark on the ground that the term “INTSA” of the challenged mark is merely a technical use that generally indicates the shape and mode of production of both words

[1] The term "trademark indicated in the general method" under Article 51 (1) 2 of the Trademark Act means a trademark used in such a way as to be acceptable in light of the sound common sense of society, which is used in such a way as not to be particularly emphasized in the trademark. In other words, considering the overall composition of the trademark, it is recognized that the trademark is a method of indicating the simple quality, efficacy, etc. of the product concerned to ordinary consumers or customers by directly reducing or emphasizing the quality, efficacy, shape, etc. of the product concerned.

[2] The case holding that since the letters written in the challenged mark " " " "" are interpreted easily and naturally to explain that "the words of a shower shower, which uses and flows down as a new letter and is prevented from flowing as a whole," the part of "INTARA" is merely a technical use that generally indicates the shape and mode of production, under Article 51 (1) 2 of the Trademark Act, on the ground that they are merely a technical use that the shape and mode of production of both words are ordinarily indicated, the effects of the registered trademark "" cannot extend to the challenged mark

[1] Article 51 (1) 2 of the Trademark Act / [2] Article 51 (1) 2 of the Trademark Act

[1] Supreme Court Decision 94Hu1008 delivered on September 9, 1994 (Gong1994Ha, 2647)

Dao-si Co., Ltd. (Patent Attorney Ahn Young-young, Counsel for defendant-appellant)

Practical Tech Co., Ltd. (Patent Attorney Jeong Byung-hee, Counsel for the defendant-appellant)

March 9, 2006

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on September 28, 2005 on the case No. 2005Da52 shall be revoked.

1. Details of the trial decision on the request for confirmation of the Plaintiff’s active right scope;

[Evidence] Each entry in the evidence Nos. 1 and 2

A. The registered trademark of this case and the marks subject to confirmation

(1) The plaintiff's registered trademark

(A) Marks:

(B) Date of application/registration date/registration number: November 21, 1991/ February 3, 1993 (Renewal of February 13, 2003)/No. 258173

(C) Designated goods: panty panty within the context of the organization, panty, the compact, the brush, the brush, the brusher, the brush, the strings, the typoids, the typoids, the panty spanty (category 25 of the product classification), the panty spanty of the Republic of Korea, the spanty of the Republic of Korea, the separation of products into the category of products, and the registration of the kind of products on May 14, 2004).

(ii)a challenged mark;

(A) Composition:

(b) User: Defendant;

(c) Explanation of the challenged mark: Marks consisting of Korean (personal history, use of e-gylology high-class origin and flow prevention) and English characters (INTASI, SNEKERS, BAS EALE) and diagrams and used for goods of “e-mail.”

B. The Plaintiff’s claim for confirmation of the scope of rights

On June 10, 2005, the Plaintiff filed a petition for a trial to seek confirmation that the challenged mark falls within the scope of the Plaintiff’s right of the registered trademark. The summary of the cause of the claim is that the challenged mark is similar to the registered trademark and is used in the intent to mislead or confuse the source of goods, which is likely to cause mistake or confusion, and that it falls within the scope of the right of the registered trademark.

(c) a dismissal decision by the Intellectual Property Tribunal;

The Korean Intellectual Property Tribunal deliberated this case in 2005Da668, and tried on September 28, 2005, "INTSA" means "INTSA" in the English language among the marks subject to confirmation on September 28, 2005 as a technical mark indicating the quality, shape, mode of production, processing method, etc. of goods, and the mark subject to confirmation as a whole is interpreted as "the two-round marks of the Sasaw that use and prevent the flow of the new species as the new ones," and thus, it merely describe the quality, form, production, and processing method of both horses in a common way. Accordingly, under Article 51 (1) 2 of the Trademark Act, the Korean Intellectual Property Tribunal dismissed the plaintiff's claim on the ground that the effect of the trademark of this case does not extend to the mark subject to confirmation.

2. Summary of the plaintiff's ground for revocation

A. Whether a trademark constitutes a technical mark under Article 51(1)2 of the Trademark Act ought to be determined in the Republic of Korea depending on the transaction situation of the pertinent goods. The “INTSA” used in the challenged mark shall be determined based on the actual transaction situation of the relevant goods. The “INTSA” is not indicated in the technical mark, as a professional technical language having the meaning of a flag that represents the constant pattern, pattern and pattern, ③ the pattern of a batological pattern, pattern and pattern, ③ the pattern of a batological pattern or pattern that shows the effects of a batological pattern or pattern, and it is not indicated in the web masters and domestic whites. Accordingly, the ordinary consumers in Korea are not aware of the technical meaning of “INTSAA” in relation to both horses, and thus, it does not constitute a technical mark.

B. From 195 to 2003, the Plaintiff spent 11.13 million won to the registered trademark at its advertising cost, including TV, magazines, and daily newspapers, for nine years from 1995 to 2003. The Plaintiff’s sales performance of products using the registered trademark was 1,23.4 billion won. The Plaintiff’s sales agency for products using the registered trademark was 65 places across the country, and the sales agency for products using the registered trademark was 327 places, and the registered trademark and articles for the Plaintiff were published and broadcasted in various media. Furthermore, the registered trademark was registered as a well-known trademark in 200, the Plaintiff’s trade name and trademark was widely known to the domestic consumers. However, the Defendant uses the mark subject to confirmation in the intent to board the Plaintiff’s well-knownness of the registered trademark.

C. The Defendant’s products are not used as a technical mark, but used as a trademark, on the grounds that there is no satisfic pattern or satisfinal pattern, which represents the common sense of satisfinus effect, or no satisfinus pattern, and thus, the Defendant’s “INTSA”

3. Determination on the legitimacy of the trial decision

(a) Restriction on the effects of trademark rights;

Article 51(1)2 of the Trademark Act provides that “A trademark indicating in a common way the ordinary name, origin, quality, raw material, efficacy, use, quantity, shape (including shapes of packages), price or production method, processing method, method of use and time of goods identical with or similar to the designated goods of the registered trademark shall not have the effect of trademark rights.” The purport of the provision is that since the technical indication of goods is ordinarily necessary in the distribution process, it is necessary for anyone to use it, and the request from the public interest that no exclusive use by a specific person is allowed due to the wishing to use it, and if such trademark is allowed, it is difficult to distinguish the trademark from other goods of the same kind. Even if a specific person has obtained trademark registration, it does not extend to the effect of trademark rights indicating it in a common way (Supreme Court Decision 2002Da6876 Decided January 24, 2003).

In this context, the term "trademark indicating in a general way" means a trademark used to the extent acceptable in light of the sound common sense of society, which is used in a way that is not specially emphasized in terms of trademark. In other words, in view of the overall composition of a trademark, it is recognized that the trademark is a method of indicating the simple quality, efficacy, etc. of the product concerned to ordinary consumers or traders by directly reducing or emphasizing the quality, efficacy, shape, etc. of the product concerned (Supreme Court Decision 94Hu1008 delivered on September 9, 1994).

(b) Whether the challenged mark is a mark generally indicating the quality, etc. of goods;

(1) Composition, use, meaning, etc. of the challenged mark

According to the overall purport of Gap evidence Nos. 1, 2, 18, Eul evidence Nos. 1 through 13, 15, 22, 24, 25, and 26, the following facts may be acknowledged:

(A) The challenged mark “” is indicated in sequence in Korean and English on the left side of the boundary of the rectangular frame as “new, INTARISA, SNEKS, ENEERS, Egylology, and high-class model use. On the right side of the mark, the letter “the prevention of clibration” is written in the shape of both horses reported and the part of the blusium. On the bottom of inserting a few clibs, the English characters written “BASESE” are written.

(B) The term “INTASISA” is not indicated in the “welter well-known” and “domestic white paper” but is not indicated in the Korean Textiles Engineering Conference. However, the Korean Textiles Engineering Conference prior, the school researchers’ fashion fluor prior, the Grology prior, the uniform and uniform pattern prior, the uniform pattern prior and uniform pattern prior, the fashionary culture museum prior, the fashion of the Slater’s fashion design school, the copyright processing prior, the copyright museum’s structural engineering, and the United Kingdom published and distributed in the Republic of Korea, and the latest textile and uniform pattern prior, the Faircurine fashion of the BONDTRIS’s SIS prior, the Tircurried Textiles S2, the Japanese Textiles’s modern fiber type prior, and the Japanese Slor’s new fashion document prior, etc. are described as follows:

(1) In fact, as the horses derived from Italian INTARISIRE, are ordinarily seen as INLAY, it refers to the mother’s or decoration inserted into a single color compilation, and the same colorless pattern appears on the surface and back of a ceiling, and the pattern of non-satis mainly appears in the satisical non-satis, and in the satis, the satisfinal pattern is often in the satisfinal pattern and the satisfinal pattern. ② In the satisfinal pattern on the basis of one color pattern, which shows the effects of inserting the satisfinal pattern, it is used in both horses, satisfinal, etc. ③ on the basis of the three-dimensional pattern, in the middle of the satisfinal pattern, the pattern in which the satisfinal pattern appears to be in the middle of the satisfinal pattern, and ④ in the satisfinal pattern.

(C) On September 2, 2004, the Korean Textiles 13 (B) published the title, “Woman Sari Sari Sari Sari Sari Sari Sari Sari Kari, which is to be seen as a variety of designs. The Sari Sari Sari Sari is one of the pattern frequently used with Jari Sari Sari Sari Sari in which the pattern, such as Sari-mari, is inserted as a color-based pattern, if any, in which the pattern, or character, expressed the pattern, and the pattern or character, in which the pattern, expressed the sariic figure, can be turned into Sari Shari Sari Sari Sari.”

(D) The term “SNEKERS” is a language derived from a climaticization that is not visible due to rubber windows attached on the bottom of the floor, and is used in both horse industries as a word that generally consists of the parts below the elements of its origin.

(E) On February 15, 1988, the Company filed an application for trademark registration of “E” with the two-rounds of half-rounds of half-rounds of half-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-rounds of all-round 19

(2) Whether the INTSA’s indication constitutes a technical indication

According to the above facts, the term "INTASIA" has been used as a professional technical language that can be known only by finding a professional advance. However, in the clothing industry related to both horses, it has been used as a word referring to a pattern, pattern, pattern, pattern, (c) a satisical pattern, pattern, or pattern which are appearing in the programming.

However, the marks subject to confirmation are written in the form of a Stick attached to both horses and indicated in the technical text of “the use of a glue type” indicating that the demand of both horses is “new use,” “INTSSISA” indicating both horses’ nife pattern, shape and mode production methods, and “SNEKS” indicating that both horses were composed only below the corresponding part, and “the use of a glue type of a glue type” indicating the raw materials of both horses. In particular, the part of “INTRASISA” is written in a small letter in Korean language with “new company” and “SNENAS” with English text “SNNAS.” In addition, the marks subject to confirmation are written in the shape of “BAESLIS” with high possibility for general consumers to recognize, and thus, it is difficult for general consumers to understand the form or form of production methods as being clearly written in the form of a general consumer or form of production methods.

In full view of the above facts and legal principles, the letters written in the challenged mark are interpreted in a easy and natural sense to explain, as a whole, that “the two-way words of a shower shower, using and flowing down different species as a new letter, are prevented.” Therefore, the part of the challenged mark’s “INTSA” in the challenged mark constitutes a technical use ordinarily indicating both the shape and mode of production.

As to this, the Plaintiff asserts that the challenged mark belongs to the scope of the right of the registered trademark, since the Plaintiff uses the challenged mark under the intent of the Defendant to take advantage of the well-known and well-known trademark. However, even if the Plaintiff’s registered trademark is well-known and well-known trademark, if the challenged mark is indicated in a common way in the name of the trademark, the trademark right becomes invalid. Therefore, the Plaintiff’s assertion

C. Sub-committee

Therefore, the phrase “INTSA” among the challenged marks is merely used to briefly describe the use, type, shape, production, and processing method of both horses in a common way. As such, it is reasonable to deem that the trademark of this case falls under Article 51(1)2 of the Trademark Act and its effect does not extend to the challenged mark. As such, the instant trial decision is lawful.

4. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Yong-ho (Presiding Judge)