[1] The case holding that the applied trademark " is a trademark consisting solely of a mark indicating the nature of the designated goods in a common way

[2] The degree of proof and standard time of determination as to whether the distinctiveness has been obtained by the use under Article 6 (2) of the Trademark Act (=the time of the decision of registration or rejection)

[1] The case holding that the trademark " ", among the designated goods, is a trademark consisting solely of a mark indicating in a common way the nature, etc. of the designated goods under Article 6 (1) 3 of the Trademark Act, as it is difficult to see that the trademark "," in which the meaning of "as to the cosmetics, such as general paintings, flasing pictures, booms, spactics, splates, fashionsplates, handbles, and handbrosplates, etc., is scepted to the extent that the body is unable to hold a sense of technical or explanatory meaning of the part of the letter drawing the special attention of the general public

[2] Notwithstanding the provisions of Article 6(1)3, 5, and 6 of the Trademark Act, where consumers are aware of whom a trademark is a trademark or a service mark as a result of using the trademark before filing an application for trademark under Article 6(2) of the Trademark Act, the requirement of strict interpretation should be applied inasmuch as an original right is granted to a mark that is inappropriate for a specific person’s exclusive use of the trademark, and the fact that consumers are aware of whom trademark or service mark is a trademark or service mark is considerably recognized should be presumed to have been advertised to a certain extent, or that the trademark or service mark itself is registered in a foreign country, and it should be determined on the basis of evidence that the trademark or service mark itself is obviously and specifically recognized among consumers. Meanwhile, whether the trademark or service mark has distinctiveness as a result of such use should be determined at the time of registration or at the time of rejection.

[1] Article 6 (1) 3 of the Trademark Act / [2] Article 6 (2) of the Trademark Act

[2] Supreme Court Decision 99Hu1645 delivered on August 26, 1994 (Gong1994Ha, 2533), Supreme Court Decision 99Hu1645 delivered on September 17, 199 (Gong1999Ha, 2215), Supreme Court Decision 2002Hu1768 delivered on May 16, 2003 (Gong2003Sang, 1375)

N. M. M. M. M. J. J. L. L. L. L. L. L. L. L. L. L. L.W.-W.

The Commissioner of the Korean Intellectual Property Office

June 19, 2003

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on February 3, 2003 on the case No. 2002 Won2672 shall be revoked.

1. Basic facts

In full view of the whole purport of the pleadings in Gap evidence 1, 3, Eul evidence 1-1, 2-2, the following facts are recognized:

A. Details of the applied trademark of this case

(1) Composition;

(2) The filing date/ the application number; on September 16, 2000, 40-200-043563

③ Applicants; Plaintiff

(4) Designated goods; Bagel equipment accumulated, fluoral dump, general flower, oil refining, breshing, water portion, white part, skn's body-clock, cresh oil for cremation, handclock, handbrecker's fee, exhauster's fee, exhauster's fee, exhauster's bath for non-medical use, petle's bed, petle's bed, petle's bed, petle's bed, petle's bed, petle's bed, petle's bed, petle's bed's bed', hump's bed's bed', hump's bed's bed', hump's bed's bed', hump's bed', hump's bee's bed', ice-de's bed's bed't.

B. The procedural background

(1) A decision of rejection

On April 9, 2002, the Korean Intellectual Property Office rendered a decision to reject trademark registration under Article 23 of the Trademark Act on the ground that the trademark of this case "the trademark of this case has a function of trial and water (which has a function of trial and water)" indicates the nature (quality, efficacy, and use) of the designated goods. Thus, the trademark of this case cannot be registered as it falls under Article 6 (1) 3 of the Trademark Act.

(2) The instant trial decision (Patent Tribunal No. 2002 Won2672)

(A) Plaintiff’s appeal, appeal, and result

On July 8, 2002, the Plaintiff filed an appeal against the decision of refusal with the Intellectual Property Trial and Appeal Board. However, the Intellectual Property Trial and Appeal Board tried to dismiss the Plaintiff’s appeal for the same reason as the following (B) of February 3, 2003 after examining it as the case No. 2002 Won2672.

(B) Summary of the trial decision of this case

The applied trademark of this case is, among the designated goods, "the trademark of this case has the meaning of "to see the original sense, maintain the part, and maintain the part," and it is difficult to see that the trademark of this case is designed to have the technical or explanatory meaning of the part of the letter drawing the special attention of the general public. It falls under Article 6 (1) 3 of the Trademark Act as a trademark indicating the nature of the designated goods in a common way. The trademark of this case is used before the application for trademark registration and recognized remarkably among consumers as indicating goods related to his business, and it cannot be deemed that the trademark of this case can be registered under the provisions of Article 6 (2) of the Trademark Act, since the trademark of this case can not be deemed to have been registered under the provisions of Article 6 (2) of the Trademark Act.

2. Whether the trial decision of this case is legitimate

A. Summary of the grounds for revocation of the Plaintiff’s trial decision

(1) Claim concerning Article 6(1)3 of the Trademark Act

(A) The trademark of this case consists of a unique body, and thus does not constitute a mark indicating the nature of the designated goods in a common way.

(B) The applied trademark of this case is merely a man-made trademark made by inserting the language of the Plaintiff’s voluntary English, which does not have a special sense or is merely a sense of “the original water and soft water.” As such, the concept of “cosmetics that scambling scambling and scambling scambling scams, scambling and scambling scams,” which is the designated goods, cannot be viewed as having a sense of scambling scams such as “cosmetics that contain scambling and scambling scams” in relation to the cosmetics that are the designated goods, and even if it is domestic, the term “scambling and scambling” in the cosmetics is not a quality or efficacy that is generally possessed or necessary, but it cannot be viewed as having used cosmetics for the purpose of scambling it.

(2) Claim as to Article 6(2) of the Trademark Act

Even if the trademark applied in this case is a trademark indicating the nature of the trademark, it is widely known to ordinary consumers as the mark of the applicant (Plaintiff) for the designated goods, and thus, it may be registered as a trademark pursuant to Article 6(2) of the Trademark Act.

B. Determination

(1) Whether it falls under Article 6 (1) 3 of the Trademark Act

According to Article 6(1)3 of the Trademark Act, a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of the designated goods in a common way shall not be registered. The purport of the above provision is to determine whether a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of the designated goods in a common way is a technical (technical) mark indicating the quality, efficacy, and use of the designated goods for the purpose of describing the characteristics of the goods, and thus lose the function of distinguishing the goods. Even if the trademark has the function of distinguishing domestic goods, it is not reasonable for the public interest to exclusively use it only for a specific person as a mark because it is necessary for the transaction of the goods. Whether a trademark constitutes a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of the designated goods in a common way should be determined objectively in consideration of the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc.

Therefore, the trademark of this case is combined with "Clool" and "Water" with meaning, such as "toy, fluent, fluent, fluent, and fluent" and "water, cooling, and cremation" which are meaningful. The overall view of the design leads to the level of ordinary attention, and it is difficult to suppress the technical or explanatory meaning of the letter as much as it is difficult for ordinary citizens to directly understand the trademark of this case with ordinary attention, and in light of the level of English distribution in our country, general consumers can easily recognize the trademark of this case as "Clool Water", and in light of our country's English distribution level, the concept of "the original or increased water" should be easily added to the trademark of this case.

In addition, 'cosmetics' are used for the purpose of storage of human body as well as for the purpose of preservation and protection of skins, and appropriate nutrition and water supply is essential for the preservation of skins, and according to season, the function of supplying and maintaining nutrition and water in the skins and the function of providing cleanness after use also plays a significant role in the selection of cosmetics (see evidence 2 to 10), so the 'probs resulting from use' should also be considered as one of the quality and efficacy of cosmetics as a general function.

In light of the above, in relation to the "general cremation" among the designated goods in which the trademark of this case is attached, general consumers are directly aware of the meaning, such as "the total number of visual cremation, the increased number of cremation, and the number of shots," which have a shot sense," which is in relation to the "fluence", such as the number of shots (shots) and the number of shots (shots) used in face or skin, and the number of shots (shots) used in the face or skin, which are related to the cosmetics of "brus, shots, skins, brup, etc.", and thus, if the trademark of this case is used on the designated goods, it shall be deemed that the trademark of this case is ordinarily used in terms of the quality and efficacy of the designated goods under Article 6 (1) 3 of the Trademark Act, and the trademark of this case, which is usually used in terms of the designated goods.

(2) Whether the pending service mark acquired distinctiveness by use

In Article 6 (2) of the Trademark Act, where a trademark is used before filing an application for trademark registration and it is clearly recognized as a trademark among consumers, the registration can be granted notwithstanding each provision of paragraph (1) 3, 5, and 6 of this Article, because it is originally an inappropriate trademark to exclusive use by a specific person, its standard should be strictly interpreted. The fact that a trademark or service mark is considerably recognized as a trademark or service mark among consumers is not presumed to have been advertised to a certain extent, or that the trademark or service mark itself is registered in a foreign country, but it should be clearly determined based on evidence that the trademark or service mark itself is considerably recognizable among consumers. Meanwhile, whether the trademark or service mark has distinctiveness by such use is determined at the time of registration or rejection ruling (see, e.g., Supreme Court Decision 2002Hu1768, May 16, 2003).

Therefore, according to the evidence submitted by the plaintiff to prove that the trademark of this case was acquired distinctiveness, among evidence submitted by the plaintiff, Gap 7-1 through 5, Gap 8, 9, Gap 10-1, 2, Gap 11-1, 14-1, 2, Gap 15, and 16-1, 2, and Eul 14-1, 14-2, 15, and 16-2, it is recognized that the trademark of this case was registered in more than 120 countries and the products bearing the trademark of this case are advertised and sold in many magazines, etc., but the above facts are not sufficient to deem that the trademark of this case was remarkably perceived among consumers as mark in whole or at least 2.2 (b) (1).

Therefore, the trademark of this case cannot be deemed to have acquired distinctiveness by the use under Article 6(2) of the Trademark Act.

(3) Sub-decisions

Therefore, the trial decision of this case which dismissed the plaintiff's request for rejection of registration on the applied trademark of this case on the ground that there is a ground for rejection of registration falling under Article 6 (1) 3 of the Trademark Act is legitimate (it does not affect the result because the trademark of this case does not constitute a mark directly indicating the nature of the designated goods other than the designated goods in the above 2.b. (1) of the designated goods, the subject matter of a lawsuit for cancellation of a trial decision on rejection of trademark of this case is not all the designated goods, but all the designated goods, and even if there is a ground for rejection on some

3. 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 Of Kimchi (Presiding Judge)