The case holding that the trademark " cannot be deemed as a trademark consisting solely of a simple and ordinary mark"

The case holding that it is difficult to view that the trademark applied for registration is a trademark consisting solely of a simple and ordinary mark when observing as a whole, on the ground that the trademark applied for registration is comprised of "R-M" and "R-M, which connects both 'R' and 'M' to open (-) in the shape of 'open' and 'M' within the shape of 'open (--)' and thereby it is sufficient to distinguish consumers from whom they indicate the goods related to their business.

Article 6 (1) 6 of the Trademark Act

2. The term "patent attorney Song Jae-soo et al., Counsel for the plaintiff-appellant-appellant)

The Commissioner of the Korean Intellectual Property Office

October 30, 2003

1. The decision made by the Intellectual Property Tribunal on July 30, 2003 by the Intellectual Property Tribunal on the case No. 2003 Won572 shall be revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts can be acknowledged in full view of the whole purport of the pleadings in the statements in Gap 1, 2, Eul 1 through 3.

A. The applied trademark of this case

(1) Applicant: The plaintiff

(2) Date/ Number of the application: July 18, 2001 / No. 2001-31322

(3) Composition:

(d) Designated goods: Green prevention agents, vs, uers, wood control agents, wood control agents, wood control agents, wood control agents, wood control charging materials, additives, sponsers, paintes, dilutions for strengthening the functionality of car paints and luxers (Article 6 [Attachment 1] of the Enforcement Rule of the Trademark Act, and Category 2 of Goods);

(b) a decision of refusal by the Korean Intellectual Property Office;

On January 21, 2003, the Korean Intellectual Property Office rendered a decision to refuse the registration on the ground that the trademark of this case constitutes Article 6(1)6 of the Trademark Act, which is a simple and ordinary trademark simply combining the two in English Alphaba, and diagrams.

C. Plaintiff’s appeal against rejection decision (Patent Tribunal 2003 won 366)

(1) The plaintiff's appeal and the judgment of the court below

On February 20, 2003, the Plaintiff filed an appeal against the decision of refusal with the Intellectual Property Tribunal. However, the Intellectual Property Tribunal tried to dismiss the Plaintiff’s appeal on July 30, 2003, after examining the case as the case No. 2003 Won572. The Tribunal rendered the instant decision of rejection on the ground that the Plaintiff’s appeal was dismissed on July 30, 2003.

(2) Summary of the grounds for the instant trial decision

The applied trademark of this case is a mark which connects "R" and "M" to open (--) within a static figure. Among them, the static-type figure is a simple figure commonly used in our surrounding areas as a basic figure coming from elementary school teaching materials along with diagrams such as a square and rectangular-type figure. It is difficult to say that the 'R-M' which connects two persons to open (-) is a shape that leads to human attention and form a new meaning or concept. Accordingly, the applied trademark of this case is merely a mark combining non-distinctive figures and letters, and thus constitutes Article 6 (1) 6 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 argument

In light of the fact that the trademark in this case cannot be seen as a simple and ordinary mark at the time of observation as a whole, and in view of the fact that a trademark combining two alphabb and diagrams is registered in the Republic of Korea and abroad, the trademark in this case does not fall under Article 6(1)6 of the Trademark Act as a trademark with distinctiveness.

(b) Markets:

Therefore, as to whether the applied trademark of this case constitutes a trademark consisting solely of a simple and trace mark, it is hard to see that the trademark of this case is a trademark consisting solely of a simple and solid figure or English figure, which is a constituent element of the applied trademark of this case, and a trademark "open (-)" connected with the trademark of this case and its English character, as a simple and solid figure. However, the applied trademark of this case is comprised of a "R-M," which connects 'R' and 'M to open (--) within the shape of static angle, thereby making it possible for consumers to feel new images. Accordingly, it is difficult to see that the applied trademark of this case is a trademark consisting solely of a simple and ordinary mark when observing as a whole.

C. Sub-committee

Thus, since the trademark applied in this case cannot be deemed to fall under Article 6 (1) 6 of the Trademark Act, the decision of this case which concluded differently is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Of Kimchi (Presiding Judge)