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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. Plaintiff’s registered service mark 1) / filing date / registration date / registration date / renewal date: C/D/ E/// 2 January 6, 2014: Designated service: 3: cafeteria business classified under Category 43, food introduction business, Korean food entertainment tavern business, and Korean food store business; b) use service 2: F Tong and bones 1: A cafeteria business specialized in pota; (c) use service business; (d) operation of a restaurant specialized in potato; (d) operation of a specialized restaurant specialized in potato; (e) the cafeteria business; (e) the cafeteria business; (e) the cafeteria business; and (d) the cafeteria business; and (e) the cafeteria business; and (e) the designated service business: (e) the mark subject to confirmation against Plaintiff on August 29, 2019 falls under the scope of the instant registered service mark and its appearance and concept; and (e) the mark subject to confirmation falls under the scope of the trademark subject to adjudication on the scope of distinctiveness.
2) The Korean Intellectual Property Tribunal rendered a ruling dismissing the Plaintiff’s request for adjudication on January 17, 2020 on the ground that the trademark right falls under Article 90(1)2 of the Trademark Act and the trademark right is not effective. Thus, the challenged mark does not need to be compared to the registered service mark of this case and does not fall under the scope of the right to the registered service mark of this case (hereinafter “instant trial ruling”).
[The facts that there is no dispute over the basis for recognition, the entries in Gap evidence 1 and 2, and the purport of the whole pleadings.]
2. Among the marks subject to confirmation of the substance of the Plaintiff’s assertion, “the bones” itself is a mark with distinctiveness and has been perceived as the source of the Plaintiff’s product due to a long-term use of the Plaintiff’s product. Therefore, it cannot be deemed as a technical mark.
Therefore, the challenged mark is one of the marks.