01. Method of determining whether a trademark falls under the case of indicating the raw materials of the designated goods; and

01. In this case where the designated goods are the species of the plant, and the main part of the trademark is “minck”, a minck is not used as the raw materials of the plant, and a general consumer or a trader does not recognize that minck is the raw materials of the plant. Therefore, this original trademark cannot be deemed as a trademark consisting solely of a mark indicating the raw materials of the designated goods.

Article 8 (1) 3 of the Trademark Act

Attorney Taeyang Industrial Co., Ltd., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office No. 119 decided Oct. 31, 1981 (Section 119)

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal by claimant's representative are examined.

According to the reasoning of the original decision, the court below, on the premise that the "trademark consisting solely of a mark indicating the raw material of the goods" under Article 8 (1) 3 of the Trademark Act is not necessarily limited to the case where such raw material is used on the designated goods in reality, but also it is possible to be used as a raw material in relation to the trademark and the designated goods. Since "minkeke", which is the essential part of the original trademark, refers to an animal with a unique feature of a high-level mark, the "minkeke" refers to an animal with a unique character, the designated goods of the original trademark, "the plant" as the designated goods of the original trademark, and can not be ruled out, so it cannot be registered, and if the raw material of the designated goods is not minke, it may cause misconception of the quality of the plant that is made by minke. Thus, this case's application for trademark registration is legitimate.

However, the issue of whether a trademark is authorized to indicate the raw material of the goods as referred to in Article 8 (1) 3 of the Trademark Act shall be determined specifically in terms of how the raw material indicated in the real transaction society is used for the designated goods. Thus, whether it is actually used as the raw material of the designated goods in question or whether it is actually used as the raw material of the goods and it is recognized by the general consumers or traders. In light of the real transaction situation, the case where a minc is produced and sold using the minc as the raw material of the goods, as well as the case where the minc is recognized as being used as the raw material of the species, and no material is found that the minc is recognized as being used as the raw material of the species. Thus, the original trademark cannot be viewed as a trademark consisting solely of the mark indicating the raw material of the designated goods, and it is difficult to mislead the general public as to the quality of the goods without being affected by Article 8 (1) 1 of the Trademark Act. Thus, the remaining decision of the court below is not reversed in violation of Article 9 (1) of the Trademark Act.

Therefore, the original adjudication is reversed, and the case is remanded to the original adjudication office. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young