[1] The meaning of Article 6 (1) 7 of the Trademark Act and the standard for determining whether a trademark has distinctiveness, and whether the above legal principles are equally applied to a service mark (affirmative)

[2] The case holding that the service mark " " " cannot be registered as a service mark because it constitutes "a service mark with which it is impossible to distinguish consumers' marking of service business related to anyone's business" under Article 6 (1) 7 of the Trademark Act as designated service business

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

[1] Supreme Court Decision 96Hu979 delivered on February 28, 1997 (Gong1997Sang, 945) Supreme Court Decision 2004Hu2871 Delivered on June 23, 2005

Suwon 8 Rad and Ink (Patent Attorney Kim Yoon-tae et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2010Heo4311 Decided October 6, 2010

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplement submitted after the period for submission).

"A trademark, other than those referred to in subparagraphs 1 through 6, which does not enable consumers to distinguish whose business it indicates goods" means a trademark which does not fall under any of subparagraphs 1 through 6 of Article 6 (1) of the Trademark Act, but which does not distinguish the source between his goods and other goods, cannot be registered. Whether a trademark has distinguishability shall be determined objectively by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc. The above legal principle applies likewise to a service mark under Article 2 (3) of the Trademark Act (see Supreme Court Decisions 96Hu979, Feb. 28, 1997; 2004Hu2871, Jun. 23, 2005).

In light of the above legal principles and the records, the pending service mark (application number No. 41-2008-13296) “ “” consists of a combination of “SUPPER” and “8” in the English language with the intent of “SUPER” and “SUPER” with the meaning of “PPPER” as the English language with the meaning of “PPPER” and “specific goods,” and thus, there is no distinctive character as it constitutes a technical mark expressing the quality, etc. of the designated service in a common way, and there is nothing but a simple and ordinary mark since it is merely a Arabic number, and there is no new distinctive character as a trademark from the combination of these parts. In addition, it does not constitute a new distinctive character or a new distinctive character.

Thus, the pending service mark of this case constitutes a service mark which does not distinguish consumers as defined in Article 6 (1) 7 of the Trademark Act in relation to the designated service as a whole and thus cannot obtain the registration of a service mark. However, the court below held that the pending service mark of this case does not fall under Article 6 (1) 7 of the Trademark Act on the ground that it is difficult to see that the pending service mark does not have distinctiveness in relation to the designated service business. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the distinctiveness of the service mark, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)