[1] Purport of Article 51 (1) 2 of the Trademark Act

[2] Criteria for determining whether a trademark falls under Article 51(1)2 of the Trademark Act, and requirements for determining whether a trademark in a foreign language falls under the trademark of the nature

[3] The case holding that since the trademark " " in question constitutes a trademark of a nature indicating the quality, efficacy, and use of goods in a common way, it does not fall under the scope of the right of the registered trademark "

[1] The purpose of Article 51 (1) 2 of the Trademark Act is to make it difficult to distinguish a trademark of such nature from another person's goods in relation to the same kind of goods because it is necessary for anyone to use the trademark as an ordinary product and it is intended to use it.

[2] Whether a trademark falls under Article 51 (1) 2 of the Trademark Act shall be objectively determined in light of the concept of the trademark, relation with the designated goods, the situation of the transaction society, etc. Thus, in order to determine the quality, efficacy, use, etc. of the goods, the meaning of the trademark in question refers to cases where the trademark is actually used as a quality, efficacy, use of the designated goods, etc. or where a general consumer or a trader recognizes it as being used as a quality, efficacy, efficacy, use, etc. of the goods. Therefore, in principle, the trademark in a foreign language must be a case where a general consumer or a trader can recognize its meaning directly and indirectly. However, if the objective meaning of the trademark in question indicates the quality, efficacy, use, etc. of the goods, and if it is actually used as the quality, efficacy, use, etc. of the goods, the trademark itself constitutes a mark indicating the nature of the trademark even if it is not easily accessible to ordinary consumers, and thus it is possible to find advance, etc.

[3] The case holding that since the trademark " " ", as a whole, constitutes a trademark of the nature indicating the quality, efficacy, use, etc. of the goods recognized by traders or users to the extent of "synthetic fibers which have a function as a starting point to block the free trade line" in relation to the goods used, it does not have the effect of trademark " "," and thus does not fall within the scope of the right of the registered trademark

[1] Article 51 (1) 2 of the Trademark Act / [2] Article 51 (1) 2 of the Trademark Act / [3] Articles 51 (1) 2 and 75 of the Trademark Act

[1] Supreme Court Decision 200Hu2149 Decided April 24, 2001 (Gong2001Sang, 1272), Supreme Court Decision 2002Hu1140 Decided August 16, 2004 (Gong2004Ha, 1552), Supreme Court Decision 2004Hu2246 Decided April 14, 2006 / [2] Supreme Court Decision 97Hu2323 Decided March 23, 200 (Gong200Sang, 1061), Supreme Court Decision 2004Hu3454 Decided April 27, 2006 (Gong206Sang, 967)

Plaintiff (Patent Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Patent Attorney Kang Jong-sung, Counsel for the defendant-appellant)

April 11, 2007

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on November 1, 2006 on the case No. 2006Da1290 shall be revoked.

1. Basic facts

【Ground for Recognition: Facts without dispute】

(a) Details of the trial decision;

The defendants filed a motion to confirm the scope of rights of the trademark of this case under Article 51(1)2 of the Trademark Act on the ground that the trademark subject to confirmation as stated in paragraph (c) falls under the mark of nature in relation to the product using the trademark and does not fall under the scope of rights of the trademark of this case. The Korean Intellectual Property Tribunal rendered a decision of this case which cited the defendants' claims.

B. The registered trademark of this case

(1) Composition:

(2) Date of application/registration date/registration number: April 30, 2004/ March 9, 2005/ No. 610813/

(c) Designated goods: synthetic fibres, synthetic fibres, etc. (Classifications Nos. 23, 24, 25);

(c) A trademark subject to verification;

(1) Composition:

(2) Goods: ATB - Synthetic Textiles goods directly manufactured as raw yarns

2. Whether the trademark subject to confirmation falls under Article 51 (1) 2 of the Trademark Act;

(a) Legal doctrine;

Article 51(1)2 of the Trademark Act provides that trademark rights shall not be effective with respect to a trademark indicating in a common way the ordinary name, place of origin, quality, raw materials, efficacy, use, quantity, shape (including shapes of packages), price, production method, processing method and time of goods identical with or similar to the designated goods of the registered trademark. The purport of Article 51(1)2 of the Trademark Act lies in the public interest request that any person needs to use the trademark, and that such trademark cannot be used exclusively for a specific person because it wishes to be used, and that it is difficult to distinguish the trademark from the goods of another person (see Supreme Court Decision 200Hu140, Aug. 16, 2004). It is objectively determined in light of the concept of the trademark, the relation with the designated goods, and the circumstances of the society, etc. Where such trademark is used after being declared in a common way, it shall be deemed that it constitutes a trademark being used by the general consumers or its use, etc., regardless of its meaning or efficacy, if it is used after being determined in a general consumers or its use.

(b) Markets:

[Grounds for Recognition: Evidence Nos. 1, 2, Evidence Nos. 1, 1 through 120 (including paper numbers), rule of experience, and purport of whole pleadings]

The trademark subject to confirmation is only written off with the word “UV” and “Cool”, which is not written off.

Of them, “UV” is registered in the English language or English language in the language of “ultraviet” with the meaning of “non-self-ray and self-ray”. The Korea Food and Drug Administration issued around July 2002 “education and publicity materials on cosmetics for the prevention of self-ray and self-ray” issued by the LG chemical tecl Center and “data on the stability of self-ray (UV)” from various Internet search materials related to cosmetics, medicine, clothing, etc., which have the function of blocking the self-ray index or the self-ray blocking, and if multiple disclosures such as Patent Gazette, the term “IV” are used as the terms related to the non-ray,” and the term “IV products” is also introduced in the English language or English language of “ultraviet,” and it appears that the term “IV products” can be prevented from being sold or sold as the terms “IV products” by the Plaintiff’s trader’s “non-Party 1” and it appears that the term “IV products” can be used as the terms “IV products related to the product.”

On the other hand, “Cool” is an easy word belonging to the 1,000 word of the basic language of the middle school of Korea and can be easily perceived as a part indicating the quality, efficacy, and use of “aTB-100 synthetic fibres,” which is a product using the word “ITB - 100 won,” which is a product of use.

(c) Conclusion

Therefore, the trademark subject to confirmation falls under the trademark of the nature indicating the quality, efficacy, use, etc. of the goods in a common way, which is recognized by traders or users as being recognized to the extent of “synthetic fibers that have an essential function in blocking out of the country” in relation to the goods used as a whole, and thus, the trademark right of the trademark

3. Conclusion

Therefore, the trademark subject to confirmation does not fall under the scope of the right of the registered trademark of this case, and the decision of this case is legitimate. Thus, the plaintiff's claim of this case seeking revocation is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Justice)