[1] Whether a confession may be established in a lawsuit seeking revocation of an administrative litigation (affirmative), and the subject matter of a confession

[2] Whether the registered trademark is "a trademark consisting solely of a mark indicating in a common way the origin, quality, raw materials, efficacy, use, quantity, shape, price, manufacturing method, processing method, use method or time of goods" under Article 6 (1) 3 of the former Trademark Act, and whether "a trademark identical or similar to a trademark which is recognized as indicating the goods of a specific person by domestic or foreign consumers" under Article 7 (1) 12 of the same Act can be a confession (negative)

[3] The case holding that a trademark consisting solely of a mark indicating the nature of the designated goods by a registered trademark consisting of a group of designated goods in a common way, and it cannot be deemed as a trademark identical or similar to a trademark widely recognized as indicating the goods of a specific person by domestic or foreign consumers

[1] In principle, the principle of pleading is applied to a lawsuit seeking the revocation of a trial decision, which is an administrative litigation, so the confession, which is a party's unfavorable statement against the major facts, may be established, but since the subject of confession is limited to facts, the legal judgment or evaluation of the facts shall not be subject

[2] Whether a trademark constitutes "a trademark consisting solely of a mark indicating in a common way the origin, quality, raw materials, efficacy, use, quantity, shape, price, production method, processing method, use method or time of goods" under Article 6 (1) 3 of the former Trademark Act (amended by Act No. 7290 of Dec. 31, 2004), and whether "a trademark identical or similar to a trademark which is recognized as indicating the goods of a specific person among domestic or foreign consumers" under Article 7 (1) 12 of the same Act is all matters concerning legal judgment, and thus, it cannot be deemed as a confession.

[3] The case holding that a trademark consisting solely of a mark indicating the nature of the designated goods by a registered trademark consisting of "Matura", which consists of the designated goods, shall not be deemed as a trademark consisting solely of a mark indicating the nature of the designated goods in a common way, and it shall not be deemed as a trademark identical or similar to a trademark widely recognized as indicating the goods of a specific

[1] Article 8 (2) of the Administrative Litigation Act, Article 288 of the Civil Procedure Act / [2] Articles 6 (1) 3 and 7 (1) 12 of the former Trademark Act (amended by Act No. 7290 of Dec. 31, 2004) / [3] Articles 6 (1) 3 and 7 (1) 12 of the former Trademark Act (amended by Act No. 7290 of Dec. 31, 2004)

[1] Supreme Court Decision 200Hu1542 decided Dec. 22, 2000 (Gong2001Sang, 386)

Plaintiff (Patent Attorney Appellee et al., Counsel for plaintiff-appellant)

Defendant

Patent Court Decision 2005Heo1691 Decided June 17, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the violation of the principle of pleading

A. In a lawsuit seeking the revocation of a trial decision, which is an administrative litigation, the principle of pleading is applied in principle, so a confession, which is disadvantageous to the party to the principal facts, may be established. However, since the facts are limited to the facts, the legal judgment or evaluation of the facts is not subject to confession (see Supreme Court Decision 2000Hu1542, Dec. 22, 2000). Article 6(1)3 of the former Trademark Act (amended by Act No. 7290, Dec. 31, 2004; hereinafter the same) provides that the registered trademark is “a trademark consisting solely of a mark indicating in a common way the origin, quality, raw materials, efficacy, use, price, form, method of production, processing, method of use, or time of goods,” and Article 7(1)12 of the same Act provides that whether it is “a trademark that is clearly identical with or similar to a trademark recognized as indicating goods among domestic or foreign consumers,” and thus, it cannot be deemed a confession.

B. In light of the above legal principles and the records, it is proper that the court below determined that the registered trademark of this case (registration No. 584246) does not constitute a ground for invalidation of registration under each of the above provisions despite the defendant's statement (the defendant's statement unfavorable to himself/herself by the plaintiff was made in another case between the plaintiff and the defendant). The court below did not err in the misapprehension of legal principles as to the principle

2. The incomplete hearing and the violation of the rules of evidence

For the reasons indicated in its holding, the court below determined that the registered trademark of this case, which is composed of "Manman", is identical to the Japanese language reading of "Manman", and even if the above words are referred to as "comfort, al, easy" in Japanese language, etc., in light of the level of Japanese language distribution, etc., it is difficult to see that general consumers or traders of "consort," who are designated goods of the registered trademark of this case, report the registered trademark of this case to "consort, al," etc., and it cannot be deemed that the registered trademark of this case cannot be deemed as a trademark consisting solely of a mark indicating the nature of the designated goods in a common way, and since it cannot be deemed that the trademark in comparison with the registered trademark of this case was clearly perceived as a trademark of a specific person between domestic or foreign consumers at the time of the application for the registered trademark of this case, the trademark of this case cannot be deemed as identical or similar to the trademark of this case cannot be deemed as indicating the goods of a specific person between domestic or foreign consumers.

3. 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 Lee Hong-hoon (Presiding Justice)