Criteria for determining whether a trademark consists solely of a mark indicating in a common way the quality, efficacy, use, etc. of the goods;

Whether a trademark consists solely of a mark indicating the quality, efficacy, use, etc. of the goods in a common way, shall be determined according to the trade situation of the goods in Korea. Even if the trademark appears to indicate or emphasize the quality, efficacy, and use of the designated goods, it shall not be deemed that the general trader or consumers cannot be recognized as indicating the mere quality, efficacy, and use of the designated goods from the perspective of the overall composition of the trademark.

Article 8 (1) 3 of the Trademark Act

Supreme Court Decision 81Hu55 delivered on December 28, 1982, 82Hu31 delivered on January 18, 1983

Pacific Chemical Industry Corporation

Puere Co., Ltd., Patent Attorney No. 54

Korean Intellectual Property Office Decision 196 delivered on March 28, 1986

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

The ground of appeal by claimant is examined.

Article 8 (1) 3 of the Trademark Act provides that "a trademark consisting solely of a mark indicating in a common way the origin, quality, raw materials, efficacy, use, quantity, shape, price, method of production, processing method, method of use or time of the goods shall not be registered." Since it is difficult to distinguish a trademark from that of another person's goods at the request of public interest that it cannot be used exclusively by a specific person, it shall be determined in accordance with the trade situation of the goods in Korea, and even if it seems that the trademark falls under this category, it shall be determined in accordance with the trade situation of the goods in Korea, and even if it appears that the trademark indicates or emphasizes the quality, efficacy, and use of the designated goods, it shall not be recognized that ordinary traders or consumers can not be recognized as indicating the simple quality, efficacy, use, etc. of the designated goods (see Supreme Court Decision 82Hu31 delivered on January 18, 1983).

In light of the records, the court below reversed the judgment of the court of first instance and dismissed the claim of the claimant on the ground that the figure of the registered trademark of this case can be seen as an Aloe, and that the plant can be used as raw materials, such as "dyp, sypryp," which are the designated goods of the registered trademark of this case. However, according to various evidence submitted by the claimant, the extract emitted from the plant of Alro, has the effect of smoking or other medicinal use, and it can be known that the trademark of this case is composed of only displaying only the figure of the plant, and it cannot be viewed as a trademark consisting solely of a mark indicating only the raw materials or use of the designated goods in a direct and common way, and there is no violation of the rules of evidence, such as theory of facts, misapprehension of legal principles, and incomplete deliberation, etc. It is not acceptable to accept the conclusion of the judgment of first instance and the decision of first instance.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the claimant who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)