[1] Criteria for determining whether a trademark of nature indication under Article 6 (1) 3 of the Trademark Act constitutes a trademark

[2] Whether the applied trademark " " is a trademark indicating the raw material and color of the raw material and cosmetics among the designated goods, which falls under Article 6 (1) 3 of the Trademark Act (affirmative)

[1] Whether a trademark constitutes a trademark with a mark indicating the raw material, shape, etc. of the designated goods in a common way shall be objectively determined by taking into account various circumstances, such as the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc. Thus, if it is possible to deem the trademark to indicate the raw material or shape of the goods, whether the goods to which the trademark pertains are actually used as a raw material or form of the designated goods or whether the word is actually used as a raw material or form of the designated goods, or whether the ordinary consumer or the trader is aware of it as a raw material or form of the

[2] The applied trademark " " is a little of the university level composed of Alphabababababababababababababababababababababababababababababababa, but its prior meaning is widely known flababababababababababababababababababababababababababababababa, so it can be easily seen that its color is a yellow or red color, so it can be immediately fladbabababababba, and it is already actually used as a raw material or color of cosmetics such as flabababababababa, and it is not desirable for public interest to use it exclusively for a specific person as a raw material of the designated goods.

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

[1] Supreme Court Decision 2002Hu192 Decided May 13, 2003 (Gong2003Sang, 1367) Supreme Court Decision 2002Hu1140 Decided August 16, 2004 (Gong2004Ha, 1552) Supreme Court Decision 2004Hu3454 Decided April 27, 2006 (Gong2006Sang, 967)

Pacific Co., Ltd. (Patent Attorney Lower-chul, Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

August 25, 2006

1. The plaintiff's claim is dismissed.

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

The decision made by the Intellectual Property Tribunal on April 21, 2006 on the case No. 2005 Won6157 shall be revoked.

1. Details of the trial decision;

A. The applied trademark of this case

(1) Composition:

(2) Date/application number: April 8, 2004/204-15827

(3) Designated goods: Naishing, laves, laves, laves, laves, laves, laves, laves, laves, laves, hair-making, hair-making, hair-making, laves, laves, laves, blaves, laves, laves, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-making, laves-shshing, lave-shing, lave-shshing, lave-shing, ladre-shshing,

(b) A decision of rejection or a dismissal decision by the Intellectual Property Tribunal;

(1) On August 17, 2005, the Korean Intellectual Property Office rendered a decision to reject the trademark registration pursuant to Article 23 of the Trademark Act on the ground that the trademark applied for trademark of this case is a "clock color" and is a technical mark indicating the colors of designated goods, and thus constitutes Article 6 (1) 3 of the Trademark Act.

(2) The Plaintiff, who is dissatisfied with the above decision of refusal, filed a petition for a trial seeking the revocation of the above decision of refusal by asserting that the trademark in this case refers to color such as yellow, etc., and thus, it cannot be seen that the ordinary consumers did not find the trademark in advance and does not constitute a technical mark.

(3) The Korean Intellectual Property Tribunal deliberated on this issue as 205 Won6157 and decided on April 21, 2006 and decided on April 21, 2006 that the trademark of this case is widely used as "wald, flad, red (flad, red (flad, red) and air flag (flag)" in the cosmetics industry, and dismissed the plaintiff's request for a trial on the ground that the trademark of this case constitutes a technical mark directly indicating the nature of the designated goods (raw materials, color, etc.) among the designated goods.

[Evidence] Evidence Nos. 1, 2, 1, 2, 3

2. Determination on the legitimacy of the trial decision of this case

A. Summary of the grounds for revoking the trial decision of the plaintiff's assertion

(1) Since the trademark applied in the instant case is the word “university” higher than a university and is the word “university” and is a general figure that is frequently accessible in Korea, it is difficult for ordinary consumers to recognize the meaning of the trademark directly and indirectly without finding or examining the trademark in advance. In the instant trial decision, a long-term newspaper, etc., which is admitted as evidence that the trademark applied in the instant case is widely used in a prior meaning in the cosmetics, is not an ordinary consumer or a trader.

(2) Although the red blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish blish bl

(3) In addition, there is no data that the instant trademark is used as raw materials of cosmetics, etc., and in light of the circumstances where it is difficult for ordinary consumers or traders to understand whether the instant trademark is actually used as raw materials of cosmetics, it cannot be deemed that ordinary consumers or traders directly recognize the instant trademark as being used as raw materials of cosmetics, etc.

(4) Therefore, the trademark applied in this case is not a trademark consisting solely of a mark indicating in a common way the color of designated goods or raw materials of Article 6(1)3 of the Trademark Act in the color of designated goods or in a common way.

(b) Markets:

(1) Article 6 (1) 3 of the Trademark Act provides that a trademark consisting solely of a mark indicating the raw material, shape, etc. of the designated goods in a common way shall not be registered. The trademark of such nature is necessary for anyone to use it as an ordinary product distribution process and it is hard to distinguish the trademark from other goods of the same kind if it is permitted to use it exclusively for a specific person since it is intended to use it. Therefore, the determination of whether a trademark constitutes it should be made objectively by taking into account various circumstances, such as the concept of the trademark, the relation with the designated goods, the circumstances of the transaction society, etc. Thus, if the trademark is deemed to indicate the raw material or form of the goods, whether the goods or the word that the trademark is used as the raw material or form of the goods, or if the ordinary consumer or the trader is aware that it is used as the raw material or form of the goods (see, e.g., Supreme Court Decision 200Hu1284, May 13, 2003).

(2) From this perspective, we examine whether the trademark of this case constitutes a trademark consisting solely of a mark indicating in a common way the raw materials, colors, etc. of the designated goods.

(4) According to the following facts: 1, 2, 4, 14, and 15-1, 2, and 6-3 Evidence Nos. 7-2, 8, 11, 12, and 3, the Korean language prior to the entry of cinton in the Siromon, the number of which is one of the cinns in Korean language, and the cinmons listed in the 1, 3-year c. g., g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. m. g. g. g. g. g. g. g. g. g. g. m. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g.

In addition, comprehensively taking account of the overall purport of the arguments in the statements in Eul evidence 7-1 through 5, 7, 9, 10, Eul, 8 through 12, 16 through 32, and 34 of this case, the above long-term business newspaper contains articles, such as "the first-generation in the core ingredients of cosmetics for skin control. There are Sphamons used. There are Sphamons in the non-permanent field. There is a sphamon or the warmon leaves. There is a sphamon or Montreal leaves." The fact that the part containing the text of the Simonmon is being sold in large quantities through Internet shopping mall or agency as well as non-Nun, cosmetics, and products related to tea, beverages, clothing, etc., as well as tea, beverages, clothing, etc.

According to the above facts, the trademark " " of this case is composed of Alphaba, without using Korean language, and the university level is somewhat small, but its prior meaning can be easily seen as a yellow or red color for all domestic consumers. Thus, if it is known that it is crymon, it can be immediately crymless if it is known that it is a yellow or red crym, and it is necessary to use the trademark at the time of application of the trademark in light of the fact that it is necessary to use the trademark as the raw material or color of the crym, such as a crym, and it is difficult to see that it is necessary to use the trademark at the time of application of the trademark in light of the fact that it is widely recognized that it is necessary to use the trademark as the raw material or color of the crym, such as the crym or pent, and that it is necessary to use the trademark at the time of application of the trademark in light of the fact that it is widely necessary for general consumers to understand that it is necessary to use the trademark as the designated material or shape of the cry.

3. Conclusion

Thus, the decision of this case as above is legitimate, and the plaintiff's claim of this case is dismissed as it is without merit.

Judges Hwang Han-sik (Presiding Judge)