[1] Criteria for determining whether a trademark constitutes "a mark indicating in a common way the origin, quality, raw materials, efficacy, use, shape, etc. of goods" under Article 6 (1) 3 of the Trademark Act, and the meaning of "a trademark other than those under subparagraphs 1 through 6 of Article 6 (1) of the Trademark Act, which does not enable consumers to distinguish who indicate goods related to a person's business"

[2] The case holding that Article 6 (1) 3 and 7 of the Trademark Act cannot be deemed to apply to the trademark as a color trademark, since the trademark " " " "," which is a part of the trademark, has distinctiveness as a whole in combination with other letters, diagrams, colors, and colors

[1] Whether a trademark constitutes "a trademark indicating in a common way the origin, quality, raw materials, efficacy, use, shape, etc. of goods" under Article 6 (1) 3 of the Trademark Act shall be objectively determined by considering the concept of the trademark, the relation with the designated goods, the circumstances of the transaction society, etc. In a case where the trademark merely indicates the quality, efficacy, and purpose of the designated goods, and does not reach the degree of direct identification of consumers, it shall not be deemed to fall under Article 6 (1) 3 of the Trademark Act. Further, even if a trademark does not fall under Article 6 (1) 1 through 6 of the Trademark Act does not fall under any of subparagraphs 1 through 6 of the same Article, a trademark with no special distinction between the goods and the goods of another person, i.e., a trademark with no special distinction cannot be registered, taking into account the concept of the trademark's trademark and its relation with the designated goods.

[2] The case holding that the part of "MaxTa", which is the trademark applied for as a color trademark, is not a technical mark (technical) in relation to the designated goods of the applied trademark, since it is difficult to see that ordinary consumers are in direct control of specific concepts relating to the quality, etc. of the designated goods of the applied trademark, such as "the highest car," and it is hard to see that the designated goods of the applied trademark, such as "the highest car," as it goes beyond simple cancer on the quality, etc. of "MaxTa", which is the character of the trademark, as a color trademark. In addition, it is easy to see the designated goods of the applied trademark, as a whole, as it is a new light and a short sound, and it is not a mix, but a special mix since such name is not sealed. On the other hand, the part of "MaxTa" is located in the upper part of the entire trademark, and is written in white shapes, and its size is combined with its red figure and combined with it, and it cannot be seen as combined with the above part No. 3.

[1] Article 6 (1) 3 and 7 of the Trademark Act / [2] Article 6 (1) 3 and 7 of the Trademark Act

[1] Supreme Court Decision 96Hu979 delivered on February 28, 1997 (Gong1997Sang, 945) Supreme Court Decision 96Hu1729 delivered on May 23, 1997 (Gong1997Ha, 1874) Supreme Court Decision 2002Hu1140 Delivered on August 16, 2004 (Gong2004Ha, 1552) Supreme Court Decision 2005Hu2786 Delivered on July 28, 2006)

e.T.S. Rocop (Law Firm Sejong, Attorneys Shin Young-young, Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

December 2, 2010

1. The decision made by the Intellectual Property Tribunal on August 27, 2010 on the case No. 2009 Won9131 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The applied trademark of this case

1) Date/application number: August 6, 2008 / 40-2008-38657

(b) Marks: (Colored Trademark)

3) Designated goods: “The products of Category 30 in the classification of the products are limited to what contains a Lemon car, tea - a remon component, strings, ston - only to what contains a Lemon component (inst wire subs), tea products - limited to what contains a Lemon component (tea products), tea products - a mixture of products containing a Lemon component, limited to what contains a tele-mon component (indu strings), tea products - a mixture of products containing a Lemon component (limited to a mixure flosts) - a mixture of products containing a Lemon component.”

B. The procedural background

1) On September 4, 2009, the Korean Intellectual Property Office examiner rendered a decision of refusal on the ground that the trademark of this case refers to “Max ea” among the marks, and is merely a combination of letters, diagrams, etc. with no distinctive character as a whole, such as the characteristics (quality, etc.) of designated goods, and the combination does not form a new distinctive character, and thus constitutes Article 6(1)3 and 7 of the Trademark Act.

2) On October 1, 2009, the Plaintiff filed a petition for an appeal against rejection with the Intellectual Property Trial and Appeal Board. However, the Intellectual Property Trial and Appeal Board deliberated on it as 2009 won 9131, and rendered the instant trial decision against rejection on August 27, 2010 on the ground that the trademark applied for trademark of this case consists of only the mark indicating the quality, raw materials, method of use, etc. of designated goods in a common way, and constitutes Article 6(1)3 of the Trademark Act.

[Reasons for Recognition] Evidence Nos. 1, 2, Eul Evidence Nos. 1, 2, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

The applied trademark of this case does not fall under Article 6(1)3 and 7 of the Trademark Act, since the "Max ea" among the marks is not directly indicated as designated goods, and its distinctiveness as a whole, such as the function of indicating the source, does not fall under Article 6(1)3 and 7 of the Trademark Act. Accordingly, the decision of this case, which

B. Defendant

The applied trademark of this case is recognized as the meaning of "Max ea" among its marks, and as a whole, constitutes a trademark consisting solely of a mark indicating the quality, raw materials, method of use, etc. of designated goods in a common way, and falls under Article 6 (1) 3 of the Trademark Act, and constitutes Article 6 (1) 7 of the Trademark Act as it is impossible for consumers to distinguish goods related to a person's business. Accordingly, the applied trademark of this case cannot be registered, and thus, the decision of this case, as the conclusion, is legitimate.

3. Determination on the legitimacy of the instant trial decision

A. Criteria for determination

Whether a trademark constitutes “a mark indicating the origin, quality, raw materials, efficacy, use, shape, etc. of goods in a common way” under Article 6(1)3 of the Trademark Act shall be objectively determined by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc. In a case where the trademark merely indicates the quality, efficacy, and purpose of the designated goods, and does not reach the degree of direct identification by consumers, it shall not be deemed to fall under Article 6(1)3 of the Trademark Act (see, e.g., Supreme Court Decisions 96Hu1729, May 23, 1997; 2002Hu140, Aug. 16, 2004; 2005Hu2786, Jul. 28, 2006; 2007Hu555, Jun. 1, 2007).

In addition, "a trademark other than those under subparagraphs 1 through 6 of Article 6 of the Trademark Act, which does not enable consumers to distinguish the origin of a trademark which does not fall under any of subparagraphs 1 through 6 of the same Article, means that even if it does not fall under any of subparagraphs 1 through 6 of the same Article, it is impossible to distinguish the origin of a trademark with one's own goods and another's goods, i.e., it is impossible to obtain registration. Whether a trademark with a special distinction is a trademark should be determined objectively by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the trade society, etc. (see Supreme Court Decision 96Hu979, Feb. 28, 1997, etc.).

B. Determination as to the applied trademark of this case

The applied trademark of this case is a color trademark, consisting of the letters “Max ea” and “lemon a” as well as the shapes and shapes of cups and Lemons, etc. among which beverages are contained, and other shapes. Among them, the letters “lemon a” and the picture are the parts that refer to the lemon ra, etc. as designated goods of the applied trademark of this case or directly express the raw materials or shapes thereof, and thus, does not have distinctiveness in itself. In addition, the other shapes are parts that are not easily recognizable by consumers as to whom they indicate goods related to a person’s business.

However, the term “Max ea”, which is the same part of the mark, is a new structure that does not exist in advance. However, it appears that the term “Max” and “Tea,” which means “Max” with the meaning of “the highest and highest” as the abbreviation of “Max” can be recognized as being combined to ordinary consumers in terms of its composition. However, even in this case, as indicated in the respective descriptions of “Max” and “A” and “B” and “Max” are used in a large number of ways such as the maximum quantity, size, and speed, and their quality and massage are not used as the highest meaning, it is difficult to view the term “Max ea” as a new technical concept related to the designated goods of this case as the designated goods of this case, and thus, it is difficult to view the term “Max ea” as a new concept related to the designated goods of this case, for instance, the term “Max ea” and the term “Max ea” cannot be considered as a new concept related to the designated goods of this case.

On the other hand, the part "Max ea" is located in the top of the entire mark, and is written in white in the upper red figure on the background of yellow, and is clearly marked with the red figure, and it cannot be deemed as only an ancillary or auxiliary part without the size thereof.

Ultimately, the trademark of this case is not deemed to fall under Article 6 (1) 3 and 7 of the Trademark Act, since the trademark of this case is deemed to have distinctiveness as a whole in combination with other letters, diagrams, and colors.

C. Sub-committee

As seen earlier, the instant applied trademark does not fall under Article 6(1)3 and 7 of the Trademark Act, and thus, the instant decision to reject the instant applied trademark is unlawful.

4. 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 Kim Jong-hwan (Presiding Judge)