In a case where Gap corporation accepted an objection to the registration of service mark " "," which is the applicant service mark of Eul corporation's patent office using the designated service business as a clothing sales agent, and the examiner of the Korean Intellectual Property Office rejected the application and decided to reject the application of the registration; and Eul requested a trial to revoke the decision of rejection, the case holding that the applied service mark does not fall under Article 6 (1) 7 or Article 7 (1) 11 of the Trademark Act

In a case where Gap corporation filed an application for registration of service mark " " "" with Eul's applied service mark " "" with the designated service business as a clothing sales agent, etc., and the Korean Intellectual Property Office examiner accepted the application and rejected the application and the decision of rejection was requested to revoke Eul's decision, and the Korean Intellectual Property Tribunal dismissed the application, the case holding that the applied service mark does not constitute "a trademark which does not enable consumers to recognize whose business the goods are indicated" as provided by Article 6 (1) 7 of the Trademark Act, and "military agent" cannot be deemed as "a trademark which does not distinguish consumers from others" as provided by Article 6 (1) 7 of the Trademark Act, and it does not constitute "a trademark which does not constitute "a trademark which does not distinguish consumers' goods related to a person's business," and it does not constitute "a trademark which is widely used as a word "the whole goods used by the military unit" at the time of the decision, but is not used as a word "the goods used by the military unit", and it does not constitute "the quality of goods provided by the military unit" under Article 17 (1).

Articles 2(3), 6(1)7, and 7(1)11 of the Trademark Act

Plaintiff (Patent Attorney Kang Il-chul, Counsel for plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

April 12, 2016

1. The decision made by the Intellectual Property Tribunal on August 26, 2015 regarding a case No. 2014 won or 3068 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The pending service mark

(1) Date/application number: March 19, 2012 ( omitted)

2) Composition:

3) Designated service business: The classification of service business is as shown in the attached Form 35, clothing sales agency business, new sales agency business, and commercial information provision business via the Internet, other than the Internet.

B. The process of the instant trial decision

(i) a decision of objection and decision of refusal;

A) On June 18, 2013, two Korea Food Co., Ltd. filed an objection to the registration of a service mark on the grounds that “this case’s applied service mark falls under Articles 6(1)3 and 7(1)11 of the Trademark Act and cannot be registered.”

B) On April 25, 2014, the examiner of the Korean Intellectual Property Office rendered a decision to object to the filing of an objection on the ground that “the instant pending service mark falls under Article 6(1)3 and 7 of the Trademark Act because it has no distinctive character as to the instant pending service mark among the designated service business, and falls under Article 7(1)11 of the Trademark Act on the ground that the designated service business is likely to mislead consumers with respect to the clothing sales agent, new sales agent, etc. among the designated service business (Evidence 1).” On the same ground, the examiner rejected the registration of the instant pending service mark (Evidence 4).

2) The instant trial decision

A) On May 23, 2014, the Plaintiff filed a petition for a trial seeking the revocation of the said decision of refusal (No. 2014 Won3068).

B) On July 17, 2015, the Korean Intellectual Property Trial and Appeal Board notified the Plaintiff of the grounds for rejection that “The main parts of the instant pending service mark, “,” which are the main parts of the instant pending service mark, is not appropriate to grant a specific person exclusive right under the widely known name among ordinary consumers, and thus, cannot be registered under Article 6(1)7 of the Trademark Act (Evidence 3 of the Trademark Act).”

C) On August 26, 2015, the Korean Intellectual Property Tribunal rendered the instant trial ruling dismissing the Plaintiff’s request on the ground that “A military agent, which is the main parts of the instant pending service mark, was beyond the concept of special recognition from the military forces, and was widely known to consumers or traders under the general name related to the military forces. Therefore, it is inappropriate for the Korean Intellectual Property Tribunal to grant a specific person exclusive license to the instant pending service mark, and thus, it cannot be registered under Article 6(1)7 of the Trademark Act (Evidence 1).”

[Reasons for Recognition] Facts without dispute, purport of whole pleading

2. Whether it falls under Article 6 (1) 7 of the Trademark Act

A. Criteria for determination

Whether a trademark has no distinctiveness shall be determined by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the trade society, etc., and where it is difficult to recognize the distinctiveness of the goods of the other goods under social norms or it is inappropriate for a competitor to have a specific person monopoly the trademark for public interest, such as where it is difficult to recognize the distinctiveness of the goods of the other person or where it is necessary for the competitor to freely use the trademark, such trademark falls under Article 6 (1) 7 of the Trademark Act, and thus, is

B. Facts of recognition

1) 네이버 오픈 사전에는 ‘군대리아’에 대해 “군대에서 일주일에 한두 번 나오는 특식”, “어원은 군대 + 롯데리아”, “메뉴 구성은 햄버거빵 2개, 샐러드, 옥수수 스프, 소스, 쨈, 스테이크, 치즈, 콜라로 구성된다.”라는 등으로 설명하고 있다.

2) If the “military agent” is entered into a search language in the NAV search hold, a number of comments will take place, and most of which include the following contents as to a specific butter:

(1) "A military food service agent who wants to drink as a head" (Evidence 5)

(2) "Military agents, hamburgical materials, which can be saved with a brudy, candy, and candys three saves shall be supplied with a saves from among military agents." (Evidence 6)

③ “A single military agent, who is a hambber that is paid by the military forces, raises a agents of disability, such as social scams,” and “a military agent is eating food by inserting scam, candles, scams, etc. into scams, scams, etc. in a water scam provided by the military forces.” (No. 7 evidence)

(4) From this year, “one military substitute (military unit + shotia) with a single-sacrifies sacrifies sacrifies, which are sacrifed by soldiers, shall be improved and the size thereof shall also increase.” (Evidence 10)

5. The phrase "(B) creambrubed brub, which is a specialized store in brub, causes chemical agents to gather brub by sending brub as military agent." (Evidence(B)

6. “In e-mail broadcast, soldiers on active duty created a variety of leths as military representatives of leths and play the leths.” (Evidence No. 16)

(7) "A plan to develop and sell military saves in the military life, such as a military agent, saber, and savebbbing, by developing a nearby military unit of the high save group with a flag (Evidence 17)" (Evidence 17)

3) On September 20, 2013, and June 1, 2014, the TV program, “Japan-Jinus Syna,” which is a famous TV program, the contributor broadcasted the hambur’s “Military Proxy,” which is a single-sypted TV program (Evidence B, No. 8, 11).

[Reasons for Recognition] Facts without dispute, entry of Eul's evidence Nos. 3 through 17, the purport of the whole pleadings

C. Specific determination

1) Composition of the pending service mark

A) The pending service mark of this case is a combination of letters and diagrams “” and the pending service mark.

B) Of the pending service mark in the instant case, “” is widely used as the word indicating “bands emitted from military forces one week by one week or by the method of its cooking.”

C) In addition, the part concerning figure “” among the pending service marks of this case is the shape in which the color and size are different from that of four lines (the Defendant asserted that the above figure will be recognized as the shape of “military rank,” but there is no evidence supporting this, and the Defendant’s above assertion is without merit).

2) At the time of the instant trial decision, trademarks, including “military units” (registration No. 1 omitted), “military field games” (registration No. 2 omitted), had already been registered.

3) There is no evidence to acknowledge that the applied trademark or service mark of this case is necessary to use the trademark or service mark as a whole in the course of distributing ordinary goods and services, or that it is necessary to use it.

4) As to this, the Defendant asserts that the part of the pending service mark “” is widely used as a general name related to the military unit. According to the written evidence evidence Nos. 19 through 21 of this case, the Defendant’s assertion is without merit, even though it is recognized that it used the advertising phrase, such as “military agency,” “military agency,” and “military agency,” on the website that sells clothes, shoes, etc. to which the pattern similar to the pattern used for military uniforms, which are entered by soldiers, applied, such as the pattern similar to the pattern used for military uniforms. In addition, it is difficult to know the date of posting the above advertising phrase, and such circumstance alone does not necessarily mean that the “military agent,” is widely used as the general name related to the military unit at the time of the instant trial decision, and there

5) Therefore, the evidence submitted by the Defendant alone cannot be deemed as constituting “a trademark which does not enable consumers to distinguish who indicate goods related to a person’s business” under Article 6(1)7 of the Trademark Act with respect to a designated service business.

3. Whether it falls under Article 7 (1) 11 of the Trademark Act

A. Criteria for determination

The term "trademarks likely to mislead consumers as to the quality of goods" in the former part of Article 7 (1) 11 of the Trademark Act refers to trademarks, the composition itself of which has the characteristics different from the original nature of the designated goods, and which are likely to mislead consumers (see Supreme Court Decision 2007Hu555, Jun. 1, 2007). In addition, the purport of prohibiting a trademark from being registered as to "trademarks likely to mislead consumers" in the latter part of Article 7 (1) 11 of the Trademark Act is to prevent misconception and confusion among general consumers as to the quality, origin, etc. of goods. Whether a trademark falls under Article 7 (1) 11 of the Trademark Act is the time of a decision on whether to register the trademark in principle and the decision on rejection is the time of a decision on rejection. This legal doctrine applies likewise to service marks under Article 2 (3) of the Trademark Act.

B. Specific determination

As seen earlier, the term “military agent” is widely used as the word “tampers from a week to a military unit” or the word “tampers prepared in accordance with the method of cooking” but is not used as the term “all goods used in the military unit” at the time of the instant trial decision.

The fact that the pending service mark of this case contains “military forces” or is part of the pending service mark is used as the word “military forces” and “military agents” means two times a week from military forces. Thus, even if the pending service mark of this case is used for the designated service business of this case unrelated to Buss, it cannot be said that consumers of the designated service business sell “goods provided by military forces” and there is no other evidence to acknowledge such circumstance.

Therefore, the pending service mark does not constitute “a trademark likely to mislead consumers as to the quality of goods” under Article 7(1)11 of the Trademark Act.

4. Conclusion

Therefore, the decision of this case is unlawful and the plaintiff's claim seeking its revocation is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

[Attachment] Designated Service Business: omitted

Judges Kim Jong-soo (Presiding Judge)