[1] The meaning of the trademark "which might be prejudicial to the public order or good customs" under Article 7 (1) 4 of the Trademark Act

[2] Requirements for falling under Article 7 (1) 9 or 10 of the Trademark Act

[3] The meaning of "a trademark likely to mislead consumers as to the quality of goods" under Article 7 (1) 11 of the Trademark Act and requirements for "a trademark likely to mislead consumers"

[4] Requirements for falling under Article 7 (1) 12 of the Trademark Act

[1] Article 7 (1) 4 of the Trademark Act / [2] Article 7 (1) 9 and 10 of the Trademark Act / [3] Article 7 (1) 11 of the Trademark Act / [4] Article 7 (1) 12 of the Trademark Act

[1] Supreme Court Decision 97Hu3623 decided Dec. 24, 199 (Gong2000Sang, 309) Supreme Court Decision 2004Hu1267 decided Feb. 24, 2006 (Gong2006Sang, 535) / [3] Supreme Court Decision 99Hu628 decided Oct. 13, 200 (Gong2000Ha, 2358), Supreme Court Decision 2001Hu3187 decided Mar. 11, 2004 (Gong2004Sang, 656) / [4] Supreme Court Decision 2004Hu3379 decided Apr. 14, 2005; Supreme Court Decision 2002Hu13624 decided May 14, 2004; 2003Hu13873 decided May 14, 2004)

Plaintiff (Patent Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Defendant

Patent Court Decision 2003Heo3754 Delivered on January 29, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. In order to constitute “a trademark which is contrary to the public order or good customs” under Article 7(1)4 of the Trademark Act, as if a trademark which imitates another’s trademark without permission is used intentionally to take advantage of the reputation of the trademark, service mark, trade name, etc., and thus, the act of registering and using the trademark goes against the good customs such as fair goods distribution order or international trust and morality. Thus, even if the act of using the trademark violates a contract between a specific party or violates the principle of trust and good customs in relation to a specific person, it does not immediately constitute “a trademark which is contrary to the public order or good customs” under Article 7(1)4 of the Trademark Act (see, e.g., Supreme Court Decisions 85Hu13, Nov. 25, 1986; 2004Hu1267, Feb. 24, 2006).

In addition, in order to constitute a trademark under Article 7 (1) 9 or 10 of the Trademark Act, a trademark of another person's trademark must be widely known or well-known in the Republic of Korea, and "a trademark likely to mislead consumers as to the quality of goods" under subparagraph 11 of the same paragraph means a trademark, in itself, the composition of which designated goods are in nature different from that of goods originally owned, and which is likely to mislead consumers as to mislead consumers (see Supreme Court Decision 9Hu628, Oct. 13, 200). In order to be "a trademark likely to mislead consumers", a trademark or goods of another person should not be clearly known and clearly identified, but at least, it should be widely known that it is a trademark or goods of a specific person if it is a general consumer or a trader in domestic trade, but at least it should be recognized as a trademark or goods of a specific person if it is a trademark or goods (see Supreme Court Decision 2001Hu3187, Mar. 11, 2004).

2. In light of the above legal principles and records, the registered trademark of this case (registration number No. 536909) of the defendant, composed of "metallic valves" and "", is identical or similar to the trademark previously used by the plaintiff on goods, such as "heat", but evidence submitted by the plaintiff alone does not lead to the extent that the plaintiff's trademark at the time of the application or decision of registration of the registered trademark of this case is widely and well-known or well-known, or at least a specific person's trademark at the time of the application or decision of registration. It is difficult to view the registered trademark of this case as a trademark that is likely to mislead the quality of the designated goods. The recognition of the registered trademark of this case is considerably lacking in social validity in the process of the application or registration of the registered trademark of this case as it goes against the order of the Trademark Act, and it is difficult to readily conclude that the defendant, who was working in the large industry company of the plaintiff's operation, has copied the plaintiff's applied for trademark of this case, or caused damage to the plaintiff's business, constitutes a tort under the Civil Act or good customs.

Therefore, the court below's decision that the registered trademark of this case does not fall under Article 7 (1) 4, 9 through 12 of the Trademark Act is just and acceptable, and there is no error in the misapprehension of legal principles, omission of judgment, or misconception of facts against the rules of evidence as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)