Criteria for determining whether a trademark is a technical (technical) trademark under Article 6(1)3 of the Trademark Act

Article 6 (1) 3 of the Trademark Act

Supreme Court Decision 97Hu396 delivered on December 12, 1997 (Gong1998Sang, 296) Supreme Court Decision 99Hu154 delivered on November 12, 199 (Gong1999Ha, 2512) Supreme Court Decision 97Hu2323 delivered on March 23, 200 (Gong200Sang, 1061)

In this regard, spawned Holdings (Patent Attorney Yoon Dong-dong, Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2005Heo3642 Decided October 7, 2005

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

We examine the grounds of appeal.

Whether a trademark constitutes a trademark consisting solely of a mark indicating the quality, efficacy, etc. of goods under Article 6 (1) 3 of the Trademark Act in a common way, shall be objectively determined by taking into account the concept of the trademark, the relationship with the designated goods, the degree of ordinary consumers or traders’ understanding and awareness of the trademark, the circumstances of the trade society, etc. However, it is not appropriate for ordinary consumers to report and directly shoulder the trademark, and to know their intent only after an examination and deliberation or a prior report, and such determination shall also be made based on the average general consumers or traders unless the designated goods are required and traded by experts (see Supreme Court Decision 97Hu2323, Mar. 23, 200).

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in holding that the trademark of this case (application No. 40-2003-0027493) cannot be deemed as a trademark consisting solely of a mark indicating quality and efficacy of the designated goods, such as computer, computer storage device, computer hard disks, etc., in a common way, based on its stated reasoning, and there is no illegality in the misapprehension of legal principles as to Article 6 (1) 3 of the Trademark Act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)