A. In a passive claim for confirmation that the trademark does not fall under the scope of the right of the registered trademark, whether the combined trademark of letters and diagrams was the subject, and then the modification is made to the claim that only the part among them is the subject (negative)

(b) The case holding that he is not a trademark indicating his trade name in a common way;

(a) With respect to a claim for passive confirmation that the claimant does not belong to the scope of the right of the registered trademark of the respondent, if the mark which is the subject of the claim for confirmation is used as a combination trademark of diagrams and characters, it is not allowed to change the claim only to the part among the marks;

B. A trademark indicating one’s name, etc., in a common way under Article 26 subparag. 1 of the Trademark Act refers to a trademark indicating that one’s name, etc., is not a method leading the general attention, but rather a method indicating one’s own name, etc., by means of stating one’s own name, etc... Thus, if a claimant’s mark addss a figure and a figure to “Rap” as a common name of the designated goods, or is composed of a combination with an English and figure in the same name as that of the trade name, and if such figure and letter are particularly for attracting the attention of the general public, it cannot be deemed as a trademark indicating one’s trade name in a common way” under Article 26 subparag. 1 of the Trademark Act.

(a) Article 100(2) of the Patent Act; Article 51 of the Trademark Act; Article 26 subparag. 1 of the Trademark Act

Attorney Park Jong-ho, Counsel for the defendant-appellant

Patent Attorney Lee Young-young et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 87 No. 126 dated June 29, 1989

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

We examine the grounds of appeal.

1. On the first ground for appeal:

According to the records, a claimant filed a claim for a passive confirmation that the mark does not fall under the scope of the right of the registered trademark of the person against whom a request for trial has been made, but then confirmed that the mark is "D" among the marks in subparagraph (a) (2) above (see the amendment of June 11, 1986) (a) (b) and (a) (a) (a) (a), it can be known that the request for the alteration of the mark and the withdrawal of the request for the trademark in subparagraph (a) (b) (i) of the above (see the amendment of June 11, 1986) are a combination trademark of diagrams and characters, and therefore, the request for the alteration of the trademark in subparagraph (a) (2) above is not allowed, and then the withdrawal of a request for a trial with respect to the mark in subparagraph (a) (1) (ii) is clearly made by a respondent on February 6, 1986, and there is no evidence that the withdrawal of the other party's request for a trial from the respondent on February 6, 1988.

The court below's decision on this point is justified in its conclusion that the decision on the trial of the mark at issue as to the actual use of the mark is unreasonable and lawful from the point of view of the nature of the trademark use pursuing public interest, but it is not somewhat insufficient and inappropriate for the claimant to seek the passive confirmation of the claim in this case. However, the court below's decision on the subject of the claim in this case as the mark in subparagraph (a) (i) and (ii) is just in its conclusion, and there is no error of law in the decision on the matters not claimed by the claimant

2. On the second and third grounds:

According to the reasoning of the original decision, the court below held that the trademark "a trademark indicating the name,....... of the applicant in a common way is not a method of expressing the name, etc. of the applicant in common, but a trademark indicating his name, etc. by means of entering his own name, etc.," as stipulated in Article 26 (1) of the Trademark Act, and held that the trademark "a trademark indicating the name, etc. of the applicant in common in a common way is not a method of leading the general attention, and is a trademark indicating his name, etc., and the trademark "a (b) of this case is attached to "a" of the claimant's trade name, and thus, the trademark "a (a)" of this case contains a common name and the designated goods "a (b)" of the claimant's trade name, so it shall not be deemed that the trademark's trade name is usually used in a common way as well as that of the English person's trade name. In light of the records, the judgment of the court below is justified and there is no error in the misapprehension of legal principles of the Trademark Act.

The reasoning of the judgment of the court below is that the attachment of the trade name to the goods is beyond the bounds of the trade name is a theory of lawsuit, but it cannot be viewed that the court below expressed the original trademark in a common way, not the original trademark (a)-(1)-(2)- of the original market and its trade name, and it does not affect the conclusion of the decision of the court below that rejected the claimant's claim by reason that the decision of the court below did not affect the conclusion of the decision of the court below, such as the theory of lawsuit

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the claimant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon So-young (Presiding Justice)