(a) the registry of the applicant trademark's "EXCEL" (negative);

(b) Method of proving that a trademark has been remarkably recognized among consumers under Article 8 (2) of the Trademark Act;

A. Whether a trademark falls under Article 8 (1) 3 of the Trademark Act shall be objectively determined by considering the concept of the trademark, the relationship with the designated goods, the circumstances of the trade society, etc., and it shall not be subject to consideration that the trademark is actually used as a mark indicating the quality, etc. of the designated goods or is likely to be used inevitably in the future.

The term "EXCEL" of the applied trademark "EXCEL" is used as a word "EXCEL", and the term "EEX" is merely a word in the English language, and if it is related to a car, etc. which is the designated goods, it cannot be deemed that the general consumers have much quality or efficacy of the designated goods, so the applied trademark is a case where there is no special distinction between the goods and others, and its use should be open to the general public for this reason, and its exclusive use should not be recognized.

B. The fact that "the trademark is a trademark of any person" among consumers under Article 8 (2) of the Trademark Act refers to the fact that there is a certain degree of publicity advertisement or the fact that a trademark similar to the trademark is registered, it cannot be presumed, and in detail, it should be clearly determined by evidence that the trademark itself is recognized among consumers.

Articles 8(1)3 and 8(2) of the Trademark Act, Article 261 of the Civil Procedure Act

A. Supreme Court Decision 86Hu33 delivered on February 10, 1987, 86Hu166 delivered on June 23, 1987

Attorney Kim Young-chul et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 88Na14 dated February 24, 1989

The appeal is dismissed.

The costs of appeal shall be assessed against the applicant.

As to the ground of appeal by the applicant's attorney

1. Article 8 (1) 3 of the Trademark Act provides that a trademark consisting solely of a mark indicating in a common way the origin, quality, raw material, efficacy, use, quantity, shape, production method, processing method, use method, or time of the goods can not be registered. The purport of this provision is that it is necessary for anyone to use it as it is an indication necessary in the distribution process of the goods. Since it is intended to use it, it is necessary for the public interest request that a specific person cannot use it exclusively, and if such trademark is permitted, it is hard to distinguish it from others' goods. Thus, the determination of whether it constitutes it should be made objectively by taking into account the concept of the trademark, the relation with the designated goods, the circumstances of the trade society, etc. (see, e.g., Supreme Court Decisions 86Hu33, Feb. 10, 1987; 86Hu166, Jun. 23, 1987).

This original trademark is indicated as 'EXCEL', so it is used as 'EXCEL' that 'EXCEL' is better than 'EXCL'. 'Korean 'EEXE' is merely an indication in English, and if the original trademark is related to a car, etc. which is the designated goods, it is not necessary to see that the original trademark has a general consumer's ability to improve the quality or efficacy of the designated goods.

Thus, the above trademark constitutes a case where there is no special distinction between the goods and the goods, and the use of the trademark should be open to the general public for this reason, and it does not recognize the exclusive use of the trademark. The decision of the original decision to the same effect is just and there is no error of law such as the theory of lawsuit.

2. The fact that a trademark is widely recognized among consumers under Article 8(2) of the Trademark Act is a trademark of any person cannot be presumed solely on the fact that the trademark has been advertised to a certain extent or that the trademark similar to the trademark has been registered. Specifically, it should be clear by the evidence that the trademark itself is recognized among consumers (see Supreme Court Decision 85Hu102, Dec. 23, 1986). Even after examining the record, it is difficult to view that the evidence of the theory alone is insufficient to deem that the trademark was clearly perceived among consumers as a trademark of an applicant as a result of the use of the trademark prior to the application.

The decision of the original decision to the same purport is just and there is no error of law such as violation of the law of evidence and incomplete deliberation. The argument is groundless.

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

Justices Yoon Young-young (Presiding Justice)