[1] Where a mark has a design function, the standard for determining whether it constitutes use as a trademark, and whether it can be used simultaneously with a warning phrase or unregistered mark to indicate the source of goods (affirmative)

[2] The case holding that a mark which is wholly identical to the registered trademark of the shape where a diameter is assigned is within the scope of the right of the registered trademark, based on the background of the shape that consists of two mariths in the middle of the shape that consists of two straight lines and straight lines in the outermost of the Marith and straight lines, and its center belongs to the scope of the right of the trademark

[1] The design and the trademark are not in exclusive and selective relations, and even if they are shapes or shapes that can be the design, if they can be seen as being used for the purpose of indicating the source of goods of other goods which can be considered as the essential function of the trademark, such use shall be deemed as trademark use. Since the indication of the source of goods is not required only by the trademark, it shall not be used by the trademark, so the use of the trademark and the use of a warning phrase that makes general consumers not confused with goods of other goods similar to the trademark can be used simultaneously.

[2] The case holding that a mark which is wholly identical to the registered trademark of the shape in which a diameter is assigned is part of the scope of the right of the registered trademark, based on the background of the shape that consists of two mariths in the middle of the shape that consists of two straight lines and straight lines in the outer range of the Marith and straight lines, and its center belongs to the scope of the right of the

[1] Article 2 (1) 1 of the Trademark Act / [2] Articles 2 (1) 1 and 75 of the Trademark Act

[1] Supreme Court Decision 96Do1424 delivered on February 14, 1997 (Gong1997Sang, 830) Supreme Court Decision 2000Hu68 delivered on December 22, 2000, Supreme Court Decision 98Do2743 delivered on December 26, 2000 (Gong2001Sang, 406)

Heading Ho-ho

Seocho-gu (Patent Attorney Park Jong-chul et al., Counsel for the plaintiff-appellant)

June 13, 2003

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 February 3, 2003 on the case No. 1923 shall be revoked.

1. Basic facts

[Evidence: Each description of Evidence A 1 to 5, and the whole purport of oral argument]

A. The applied trademark of this case

(a) Registration number: 501564;

(2) Date of application/registration: August 29, 2000/ September 17, 2001

(3) Composition:

(4) Designated goods: Article 6(1) [Attachment 1] of the Enforcement Rule of the Trademark Act 20 of the classification of goods / [Attachment 1] ...... 'Beds, bottleds, non-medical water beds, light booms, food table, clothes, blick

(5) An owner of a trademark right/exclusive licensee: A household that resigns from the defendant/stock company (til September 17, 201)

(a) The mark;

(1) Composition:

(2) Explanation: The description is being carried out in the form of a pattern for transplant drawn up on the surface of a pair of head decoration.

C. Details of the instant trial decision

The plaintiff applied for a trial to confirm the scope of passive rights that does not fall under the scope of the right of the registered trademark of this case since the registered trademark of this case was used as a mere pattern and used for the purpose of use, and the design right is extinguished because it is registered as the design. Thus, since anyone can freely implement the registered trademark of this case without restriction, the plaintiff's (Ga) mark is not within the scope of the right of the registered trademark of this case. The Korean Intellectual Property Tribunal deliberated the above case as 2002Da1923 and dismissed the above request for a trial on February 3, 2003 as follows.

D. Summary of the grounds for the instant trial decision

(1) Whether the registered trademark of this case and the mark referred to in subparagraph (a) are similar

The registered trademark of this case and the mark (a) of this case are composed of a square figure and a member among them, and there is no difference between the two in the original and the two, and the overall appearance and the internal composition are completely identical.

(2) Whether (a) mark is used as a trademark

(a)The mark is used on the surface of the bed's head decoration, and is used in a place where a general consumer's preference is concentrated, and the function of indicating the origin of the product is also deemed to be together with a stolen function, and it is insufficient to recognize that the (a) mark was used on the part of the bed's head customarily.

In addition, even though the claimant asserts that part of the invalid design right is the registered trademark of this case, if (a) mark falls under the scope of the right of the registered trademark, it is not the execution of the invalidated design right, but the scope of the registered trademark right is at issue, so the owner of the design right is not allowed to freely implement the design even when he infringes on another person's trademark right. Therefore, the above assertion is without merit.

(3) Conclusion

(A) Accordingly, if the mark is used in one of the designated goods of the instant registered trademark, it is likely to cause general consumers or traders to mislead or confuse the source of the goods. (A) The mark falls under the scope of the right of the instant registered trademark.

2. The parties' assertion

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

(1) The distinctiveness of the registered trademark of this case

The two sides of the trademark of this case are common use in the household industry since the two sides of the trademark of this case or the mark of this subparagraph (a) is made in accordance with the traditional tradition, and the trademark of this case includes this, and the trademark of this case or the mark of this subparagraph (hereinafter referred to as "registration No. 128083, hereinafter referred to as "the invalid design of this case") of the defendant which has already been invalidated before the application is made, and (a) the trademark of this case is common use in the household industry, because the shape of the mark of this case is "a pair of studies", the name of the unit of the unit of this case is "a pair of learning", and

In addition to the defendant, a large number of congrative manufacturers, such as ‘selective household', ‘psyed person', ‘sty industry of a stock company', ‘soil of a stock company', ‘sulve', ‘Swelve', ‘swelve', ‘swelve', ‘swelve', ‘swelve', ‘swelve', ‘swelve', and ‘swelve household' have been used commonly.

Therefore, the mark of the trademark of this case as well as (a) is merely an essential form consisting of the goods, and it is not a selective attachment like the trademark, and it is merely a simple form of a shape that is suitable for the product name that is used in the "bridges" prior to the filing date of the application, and thus does not have the ability to distinguish between the trademark user's product and the third party's product.

In particular, it can be seen that the mark (a) has been used as a whole by either B-31 or B-3, and the plaintiff's product with the mark (a) has been manufactured and sold prior to the filing date of the trademark of this case.

(2) Extinguishment of a registered design right;

(A) The mark is a pattern used in the invalidation of this case, which has already been invalidated by the Plaintiff’s request for a trial, and was posted in the form of a reference to the price attached with the pattern of the registered trademark of this case in the written adjudication on invalidation of the said design. Following the extinguishment of the said design right finally and conclusively, any person can freely implement the said mark. Even if the Defendant was registered as a trademark only in the pattern of (a) mark in the extinguished design right, it is unreasonable to apply for the extinguished right as a trademark and seek the continuity of the right.

(iii)the use of a trademark;

A trademark use is used as a mark distinguishing the source and the other goods in relation to the designated goods, and the trademark of this case is used as a mark distinguishing the designated goods, and there is no distinctive character as it is used, and in traditional wood households, the source is indicated in the form of a scrupt, etc., and the defendant himself/herself also uses the mark "on the scrubing of a household representing Korea" with a mark distinguishing his/her goods, and adds it to the right side with a seal "on the scrub of a scrub of a Scrub", and does not use the name of the door formed in the scrub in the scrupt of a scrush as the origin and distinctive mark, so the use of the trademark of this case as well as the use of the

(4) The well-known and well-knownness of the instant registered trademark

Since the defendant did not succeed to the business and asset acquisition method of the household that resigned from the company of this interest business, it is irrelevant to the above company. The defendant submitted all the data related to the well-known and well-knownness of the registered trademark of this case, which is irrelevant to the defendant.

(5) The defendant's malicious intent

The defendant is seeking profits from a bona fide tenant with the registration of a design right that was extinguished by his/her business assets as a trademark, and the registered trademark of this case was used only as the design by the defendant, but takes civil and criminal measures in bad faith as if it were used in trademark.

B. Defendant’s assertion

(1) The distinctiveness of the registered trademark of this case

The registered trademark of this case is not a pattern that is commonly used in the lux household industry, and all of the enterprises asserted by the Plaintiff as the business partners of the Defendant, who use the text of the registered trademark of this case, are all evidential materials submitted by the Plaintiff as the business partners of the Defendant, related to the inventory of the Defendant company that was neither published by the Defendant nor infringed upon the Defendant’s trademark rights, or some of the business partners of the Plaintiff who were illegally produced by the Plaintiff, and thus, they cannot be argued as the tolerance mark of the household industry with the trademark rights infringement of

(2) Whether (a) mark is used as a trademark

A trademark for indicating the source of goods may also have a design function at the same time, and Article 2 subparag. 1 of the Trademark Act stipulates that a three-dimensional shape may be registered as a trademark, and Article 53 of the Trademark Act provides that the use of a trademark in conflict with a design right is not an exclusive or selective relationship, but an inter-regional relationship is closely related to the use of a trademark, and this is more so in the case of a figure trademark, color trademark, and three-dimensional trademark, the design function of which is bound to be inevitably accompanied by the design function.

Therefore, even though a certain mark has a strong design element, it cannot be concluded that it is not a trademark use as long as the function of indicating the source is little. The defendant's sediment product does not have to be necessarily indicated in relation to the overall shape and shape of the trademark of this case, and in particular, the registered trademark of this case is indicated in the space where the sediment head board is divided into the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and duty

Furthermore, it is unreasonable for the Plaintiff to claim that the mark (A) is used for the sedging product in a way entirely identical to the Defendant and has not been used as a trademark. Ultimately, the mark (a) is used in the sedging head, and is used in a place where the customer’s vision is concentrated, and the mark of the source of the goods tend to be differentiated from the sedging part of the sedging head by the external appearance and decoration of the sedging part in general and be differentiated from the sedging part of the sedging part.

(3) The well-known and well-knownness of the instant registered trademark

The instant registered trademark was used by the Defendant for more than 20 years for the exclusive licensee of the instant registered trademark that is managed by the Defendant, and used the presidential prize and various prizes, such as Seoul International Home Exhibitions, and used exclusively for over 20 years to sell and advertise sedi products attached to Seoul and the entire country's agency network. The instant registered trademark is a mark widely known among domestic consumers and customers as a master master of traditional household.

3. Determination

A. Whether the registered trademark of this case is similar to the mark (a)

The similarity of trademarks should be determined by whether there is a concern for mistake or confusion as to the origin of the goods by observing two trademarks used for the same kind of goods in terms of appearance, name, and concept in a whole, objective, and separation, and on the basis of a direct perception that ordinary consumers or traders feel with respect to the trademark. First, in preparation for the appearance of the registered trademark of this case and the mark of this case, both marks are in the background of the shape of the pattern in which the two marks are rectangular angled directly and directly from the outermost angle, and they have the same appearance as the shape in which they are placed at the center. Accordingly, both marks are the same without need to prepare for ideas or names.

In addition, among the designated goods of the registered trademark of this case, the "sleep" is the same goods as the goods using the mark of this case in terms of transaction norms.

Therefore, barring special circumstances, (A) marks belong to the scope of rights of the trademark of this case.

B. Judgment on the Plaintiff’s assertion

(1) The distinctiveness of the registered trademark of this case

The plaintiff asserts that the registered trademark of this case is used as a crime, and that many manufacturers use the registered trademark of this case with no distinctive character, and thus, considering the health unit, Gap 3 through 10, Gap 15, 16 evidence, and Gap 31 evidence, the plaintiff can be recognized that the mark similar to the registered trademark of this case was manufactured and sold with the head board for a long period of time after being inserted into the main board, and there is no other evidence that the manufacturer or manufacturer of this case's products were transferred to the manufacturer or manufacturer of this case's products for a long period of time by using the aforementioned products for a large number of manufacturer or manufacturer's essential distinctiveness. However, the above evidence alone does not recognize that the manufacturer or manufacturer of this case's products were transferred to the manufacturer or manufacturer of this case's products for food.

In addition, in full view of the whole purport of evidence Nos. 2, 2, 4, 5, 6, 9, 10, 26, 27, 28, 29 and 29 evidence Nos. 1 through 4, 26, 27, 29 and 29 evidence Nos. 1 through 4, "the soil of the corporation" among the above-mentioned household manufacturers is in a relationship with the defendant as an enterprise having transaction relation with the defendant and is in a relationship with the defendant by manufacturing and supplying the defendant, 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's '' was used without permission for the registered trademark of this case to the above enterprises without permission, and the defendant sent the 's 's 's 's 's 's 's ' ' ' ' 's 's 's 's 's 's 's 's 's 's 's 's 's ''s '.'.'.

(2) Extinguishment of a registered design right;

Next, the plaintiff argues that the (Ga) mark does not fall under the scope of the right of the trademark of this case since since the (Ga) mark is allowed to be carried out freely as the invalidity of the invalidity of this case became final and conclusive, and therefore, (Ga) mark does not fall under the scope of the right of the trademark of this case. Thus, even if the trademark of this case appears in the invalidation of this case as claimed by the plaintiff, it cannot be readily concluded that the (Ga) mark falls under the scope of the free implementation, and rather, according to the contents of (Ga) mark No. 4-1 to 3, the trademark of this case (attached Form 1) does not fall under the scope of the trademark of this case. Thus, the plaintiff's above assertion is without merit.

(iii)the use of a trademark;

We examine the plaintiff's assertion that the defendant or the resigned household does not use the trademark of this case or the (Ga) mark as a trademark, and that the use of the plaintiff's (Ga) mark cannot be deemed as a trademark use, by using the shape, figure, falling pipe, etc. with his own goods identification mark, and advertising "the spathicum of the Spathicum" as "the spathicum of the Spathicum."

The design and trademark are not in exclusive or selective relations, and even if they are shapes or shapes that can be the design, if they can be seen as being used for the purpose of indicating the source of other goods, which can be deemed as the essential function of trademark, such use shall be deemed as trademark use (see Supreme Court Decisions 96Do1424, Feb. 14, 1997; 200Hu68, Dec. 22, 2000; 98Do2743, Dec. 26, 2000). Since the indication of the source of goods is not required only by a trademark, it shall not be used at the same time by the trademark, it shall not be deemed as a use of the trademark, and at the same time, it shall be possible to use a warning phrase that makes general consumers not confused with other goods similar to those of others.

In full view of the whole purport of arguments in the statements 11, 12, 13, 14, and 17-1, 2, 3, 4, 18, 19, 20, 21, 22-2, 23-2, 24-2, 6, 7, 8, 34-1, and 34-2 of the evidence Nos. 24-2, 23-2, 24-2, 24 of the registered trademark of this case, the resigned household, which is an exclusive licensee of the registered trademark of this case, can recognize the facts that the registered trademark of this case is being used by inserting the trademark of this case on the head board of the sunken product that can attract the sight of ordinary consumers and customers, and there is no counter-proof. According to the above facts, the use of the registered trademark of this case by the resigned household of this case, even if it is not the only purpose to indicate the source of its goods, and there is no reason for the plaintiff to use the registered trademark of this case with the trademark of this case.

(4) The well-known and well-knownness of the instant registered trademark

Furthermore, the Plaintiff asserts that all materials submitted by the Defendant regarding the well-known and well-knownness of the trademark of this case were irrelevant to the Defendant as materials for the household that resigned from office. However, even if the registered trademark of this case is not well-known and well-known, there is no obstacle to recognizing the scope of the right. Thus, the Plaintiff’s above assertion is rejected.

(5) The defendant's malicious intent

Finally, the plaintiff asserts that the defendant sought benefit by suppressing the tenant in good faith, and even if he acted as the abuse of trademark rights registered, it is insufficient to recognize the abuse of rights by the plaintiff's transfer certificate, so the plaintiff's above assertion is not acceptable.

C. Sub-committee

Therefore, the mark (A) cannot be deemed to fall under the scope of the right of the registered trademark of this case.

4. Conclusion

If so, the trial decision of this case as to this conclusion is just, and the plaintiff's claim of this case seeking its revocation is without merit.

Judges Cho Yong-ho (Presiding Judge)