(a) Standard for determining whether to grant a technical trademark authorization under Article 6(1)3 of the Trademark Act

(b) Whether the term "NOIR & BLNC" is a technical trademark, consisting of clothing, such as swegs, sports Shirts, tyrts, bio-bruts, etc. as designated goods;

A. The purport of Article 6 (1) 3 of the Trademark Act is to determine whether a trademark consisting solely of a mark indicating, in a common way, the quality, efficacy, shape, etc. of the goods in question in a common way under the social concept of ordinary consumers is objectively determined by considering the concept of the trademark, the common quality, efficacy, shape, etc. of the goods in question, the common quality, efficacy, and shape of the goods in question, and the situation of the transaction society, etc. Even if the trademark appears to indicate or emphasize the quality, efficacy, shape, etc. of the designated goods, it shall not be deemed that ordinary traders or consumers expressed the simple quality, efficacy, shape, etc. of the designated goods in a common way.

B. The meaning of the trademark in the application trademark can coincide with the color of some of the designated goods, but in light of the transaction situation, clothes can be used as a swegs, sports line, trts, bruts, and swebs, etc., which are the designated goods of the NIR & BLC. Thus, the trademark in the application trademark can be seen as a trademark indicating the shape of the designated goods or other characteristics, since the trademark in the application trademark can only be seen as having a variety of colors, such as clothes, and all of the designated goods can only be seen as having a swegs, white, etc., and it does not mean that the general trader or consumer reported the above application trademark, and it does not recognize that the trademark in the application trademark has the color of clothes, which is the designated goods, and it is difficult to view that anyone wants to use the trademark in the above trademark and its exclusive use is contrary to the public interest.

Article 6 (1) 3 of the Trademark Act

A. Supreme Court Decision 90Hu1208 delivered on March 27, 1991 (Gong1991, 1291) 92Hu124 delivered on June 23, 1992 (Gong1992, 2282) 94Hu616 delivered on October 28, 1994 (Gong194Ha, 3129)

Patent Attorney Shin-deok, Counsel for defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 93Na1416 Dated August 31, 1994

We reverse the judgment of the court below.

The case shall be remanded to the Korean Intellectual Property Office Appeal Office.

The grounds of appeal are examined.

According to the reasoning of the court below's decision, the court below maintained the original decision rejecting registration by applying Article 6 (1) 3 of the Trademark Act, on the ground that "NIR" among the "NIR & BLNC" of the applied trademark of this case constitutes a trademark consisting solely of a mark indicating the pattern or color of the designated goods in a common way, or indicating the character of the designated goods in a common way, and that "BLNC" consists of easily French words, such as "White and colorless," but it consists of easy words, such a mark is used in the clothes only in the form of black and white color."

However, the purpose of Article 6 (1) 3 of the Trademark Act is to determine whether a trademark consisting solely of a mark indicating, in a common way, the quality, efficacy, shape, etc. of the goods in question, in light of the social concept of ordinary consumers, is objectively determined by considering the concept of the trademark, the common quality, efficacy, shape, etc. of the goods in question, the common quality, efficacy, shape, etc. of the goods in question, and the actual condition of the transaction society, etc., and even if the trademark appears to indicate or emphasize the quality, efficacy, shape, etc. of the goods in question, it shall not be deemed that general traders or consumers cannot recognize that the trademark is indicating the simple quality, efficacy, shape, etc. of the designated goods in a common way (see, e.g., Supreme Court Decision 9Hu2939, Mar. 27, 1991; 201Hu13939, Apr. 13, 20129; 209Hu1394, Apr. 19, 291993).

In light of the records, clothing, such as swewater, sports airrts, tyrts, bruts, and doers, which are the designated goods of the trademark applied in this case, can be seen as being black or white. Thus, the meaning of the trademark applied in this case may coincide with some colors of the designated goods, but in light of the transaction situation, clothing can be used as a swel and other diverse colors, and all the designated goods can only be seen as being swelf and white, so general traders or consumers should report the above applied trademark and recognize that they have the color and other characteristics of the clothing, which is the designated goods, and it is difficult to see that anyone intends to use the above trademark and that the exclusive use is contrary to the public interest.

Therefore, the court below's decision that the above applied trademark cannot be seen as a trademark indicating the shape of the designated goods or other character, but it is erroneous in the misapprehension of legal principles of Article 6 (1) 3 of the Trademark Act, which affected the conclusion of the decision.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench to reverse the judgment of the court below and remand the case to the Korean Intellectual Property Office for a new trial and determination.

Justices Park Jong-chul (Presiding Justice)