Plaintiff

Defendant

April 5, 2007

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 October 30, 2006 on the case No. 2006Da1222 shall be revoked.

1. Basic facts

A. Registered service mark of this case

(1) Date of application/registration decision date/registration date/registration date/registration number: July 12, 200/ March 23, 2002/ May 22, 2002

No. 75986

(2) Composition:

(3) Designated service business: Home service business (category 42 classified into service business).

(4) Service right holder: Defendant

B. The procedural background

The Plaintiff filed a petition against the Defendant for a trial on invalidation of the service mark on the ground that the registered service mark of this case was erroneously registered in violation of Article 6(1)3 and 7 of the Trademark Act, and thus its registration should be invalidated pursuant to Article 71(1)1 of the Trademark Act. The Korean Intellectual Property Tribunal deliberated on the above case on October 30, 2006, and subsequently dismissed the above case on the ground that the registered service mark of this case was presented rather than directly indicating the quality, efficacy, efficacy, and use of the designated service. On October 30, 2006, the registered service mark of this case was not indicated directly by the designated service business. The registered service mark of this case was distinctive, and as a whole, it was decided to dismiss the above case on the ground that ordinary consumers have special flexibility as a service mark that can recognize the source of the designated service business.

【Evidences Nos. 1 and 3, and the whole purport of the pleading】

2. Summary of the grounds for revoking the trial decision asserted by the Plaintiff

The registered service mark of this case constitutes a technical mark directly indicating the quality, efficacy, use, etc. of its designated service business, and falls under Article 6(1)3 of the Trademark Act. Since it is not recognized as distinctive character of its own service business, it falls under Article 6(1)7 of the Trademark Act, and thus, it is likely for consumers to mistake the quality if it is used for its designated service business. Thus, it falls under Article 7(1)11 of the Trademark Act.

3. Determination

A. Whether the registered service mark of this case constitutes Article 6(1)3 of the Trademark Act

Whether a trademark is approved solely with a mark indicating the quality, efficacy, use, etc. of goods under Article 6 (1) 3 of the Trademark Act in a common way shall be objectively determined by taking into account the concept of the trademark and the common quality, efficacy, use, and trade society of the designated goods. The meaning of a trademark shall be free from a direct and direct perspective to ordinary consumers, and it shall not be subject to consideration that a general consumer can report the trademark, see the trademark, and the purport of the trademark can only be known after an examination or prior examination, or finding a prior report. Such determination shall also be made on the basis of ordinary consumers, unless the designated goods are required and traded by experts, unless it falls under Article 6 (1) 3 of the Trademark Act. Such a legal principle applies likewise to service marks (see, e.g., Supreme Court Decisions 2005Hu2595, Jan. 26, 2006; 203Hu237, Mar. 23, 2003).

이 사건 등록서비스표는 한글 ‘파출’과 ‘박사’가 간격 없이 결합된 문자표장으로서, 갑 제4, 8, 11호증의 각 1, 2의 각 기재에 변론의 전취지를 종합하면, 이 사건 등록서비스표 중 ‘파출’은 ‘어떤 일을 위하여 사람을 보냄’을 뜻하고, ‘박사’는 일반적으로 ‘널리 아는 것이 많거나 어느 부분에 능통한 사람을 비유하여 이르는 말’을 뜻하는 단어인 사실을 인정할 수 있다. 그런데, 일반 수요자나 거래자들이 ‘파출’이란 말의 위와 같은 의미를 곧바로 이해하고 있다고 보기 어렵고, 그 의미를 곰곰이 생각한 후에 파출부나 파출소에서 ‘부’자나 ‘소’자를 생략한 것이 아닌가 하고 이해할 것으로 보이므로, 이 사건 등록서비스표인 ‘ ’가 그 지정서비스업인 가사 서비스업을 직접 가리키는 용어라고 할 수 없다(가사 서비스업을 직접 가리키는 용어라고 할 수 있기 위해서는 ‘가사박사’, ‘가정박사’ 또는 ‘파출부박사’라는 용어를 사용한 경우일 것이다). 이 사건 등록서비스표가 전체적으로 그 관념이 일반 수요자나 거래자들에게 ‘어떤 일을 위하여 사람을 보내는 일에 아는 것이 많거나 능통한 사람’으로 인식된다면, 이 사건 등록서비스표의 지정서비스업인 ‘가사 서비스업’은 ‘집안 살림에 관한 일을 하는 서비스업’을 말하므로, 이 사건 등록서비스표는 그 지정서비스업의 품질·효능·용도 등을 암시한다고 할 수 있을 지언정 이를 직감할 수 있는 정도로 표시한 것이라고 보기는 어렵다.

Therefore, the registered service mark of this case does not fall under Article 6 (1) 3 of the Trademark Act.

B. Whether the registered service mark of this case constitutes Article 6(1)7 of the Trademark Act

"Trademarks other than those under subparagraphs 1 through 6 of Article 6 of the Trademark Act, which does not enable consumers to distinguish whose goods it indicates in connection with a person's business," means trademarks which do not fall under subparagraphs 1 through 6 of Article 6 of the Trademark Act, but whose sources cannot be identified between their goods and others' goods, and which constitutes a trademark is determined depending on which general consumers can recognize the origin of the goods in relation to certain goods (see Supreme Court Decision 96Hu979 delivered on February 28, 1997).

On March 23, 2002, the evidence submitted by the Plaintiff alone, which is the time of the decision to register the registered service mark of this case, cannot be deemed to have been a name that is used and recognized as having been actually used by ordinary consumers or traders as referring to the day on which the establishment of the house was performed (the evidence submitted by the Plaintiff is mostly used after March 23, 2002 or after that, it is difficult to find that the Plaintiff used the term "ex-post" before March 23, 2002, and it is difficult to find that the registered service mark of this case has no distinctive character. Since the registered service mark of this case is not a mark commonly used in the business community as of March 23, 2002, it cannot be viewed that the use of the registered service mark of this case is inappropriate for the public interest, and it cannot be seen that the overall service mark of this case indicates the service related to the business of consumers.

Therefore, the registered service mark of this case does not fall under Article 6 (1) 7 of the Trademark Act.

C. Whether the registered service mark of this case constitutes Article 7(1)11 of the Trademark Act

"Trademarks that are likely to mislead consumers as to the quality of goods", which are grounds for registration invalidation under Article 7 (1) 11 of the Trademark Act, means the trademark whose composition itself has the nature different from that of the designated goods originally owned, and which is likely to mislead consumers as to the degree of consumers. Whether there is a concern that a trademark might cause deterioration in its quality shall be determined on the basis of the standard transaction norms, and it shall be identical to service marks (see Supreme Court Decision 99Hu628 delivered on October 13, 200).

However, as seen above, it is difficult to view the term "", which is the registered service mark of this case, as being directly referring to the quality, efficacy, use, etc. of the designated service business, or as being perceived by ordinary consumers as "a person who is able to live in the house immediately." Thus, it is difficult to regard the registered service mark of this case as "a person who is able to live in the house." Thus, it cannot be said that consumers might mistake the quality, efficacy, use, etc. of the registered service mark of this case.

Therefore, the registered service mark of this case does not fall under Article 7 (1) 11 of the Trademark Act.

D. The Plaintiff asserts that the registration of the instant registered service mark should also be invalidated, on the ground that the Plaintiff’s refusal to grant trademark registration, such as “PP Korea, PPD, PPD, and SPD,” which is similar to the instant registered service mark.

On the other hand, whether the registered service mark is eligible for registration should be determined individually according to each service mark in relation to the designated service business, and whether it constitutes a technical mark is determined relatively in relation to each designated service business (see Supreme Court Decision 2000Hu1436, Mar. 23, 2001). However, the registered service mark of this case does not directly refer to the quality, efficacy, use, etc. of the designated service business, but it is not a term that is recognizable as "a person who is fluent with respect to the work of care at house" by ordinary consumers, and it cannot be deemed as null and void, as seen above, since it is not contrary to the fact that "SP Korea, SPD, SPD, SPD, and SPD," etc. were decided to refuse trademark registration. Therefore, the plaintiff's above assertion is without merit.

E. Sub-committee

Therefore, since the registered service mark of this case does not fall under both Articles 6(1)3 and 7(1)7 of the Trademark Act and Article 7(1)11 of the Trademark Act, the trial decision of this case, which is the same conclusion, is justifiable.

4. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the trial decision of this case is without merit, and this case is dismissed. It is so decided as per Disposition.

Judges' seats (Presiding Judge)