The case holding that "GOLD PET" in the applied trademark constitutes a technical (technical) trademark under Article 6 (1) 3 of the Trademark Act in relation to pet animal feed

The case holding that even though the "GOLD PET" in the applied trademark is a "pet animal, such as yellow gold," according to its prior meaning, in relation to the designated goods, since it constitutes an animal that consumes feed, which is the designated goods, and is used as the designated goods, the trademark applied for registration constitutes a technical (technical) trademark under Article 6 (1) 3 of the Trademark Act.

Article 6 (1) 3 of the Trademark Act

Supreme Court Decision 81Hu55 Decided December 28, 1982 (Gong1983, 370) Supreme Court Decision 82Hu41 Decided January 23, 1984 (Gong1984, 371) Supreme Court Decision 99Hu2549 Decided February 22, 2000 (Gong2000Sang, 845) Supreme Court Decision 2000Hu2149 Decided April 24, 2001 (Gong201Sang, 1272)

E X-S Scop Rocop (AGX Svice, Inc.) (Patent Attorney Lee Jae-soo, Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

July 11, 2003

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 March 27, 2003 on the case No. 2002 Won1521 shall be revoked.

1. Basic facts

[Evidence: Evidence Nos. 1, 2, 3, 1-1, 2-2 and all purports of oral argument]

A. Details of the applied trademark of this case

(1) Application number: No. 27822 of 2000

(2) Date of application: June 12, 2000

(3) Marks:

(4) Designated goods: Article 6(1) [Attachment 1] of the Enforcement Rule of the Trademark Act for the purpose of raising 31 category of goods, and feed for high-sea feed.

B. Details of the instant trial decision

The Korean Intellectual Property Office examiner rendered a ruling of rejection against the applied trademark on the ground that the trademark of this case refers to the highest pet animal and constitutes only the mark indicating the quality of goods as prescribed by Article 6(1)3 of the Trademark Act, and the plaintiff filed a request for a trial of dissatisfaction against it. The Korean Intellectual Property Tribunal rendered a ruling of rejection of the above request for a trial on March 27, 2003 on the ground that the above request for a trial was examined as 202 Won1521.

C. Summary of the reasoning for the instant trial decision

The trademark of this case is composed of "GOD PET" and "GOLD" is recognized as a general term indicating that it is a good, excellent, high quality, or highest grade, and "PET" is a medium student's English language with the prior meaning of "pet animal," and it is recognized as a "an excellent or excellent pet animal," and it can directly be a good or excellent pet animal in relation to the feed of the dog breeding as designated goods, by recognizing that the trademark of this case is "an excellent or excellent pet animal, if the feed of the dog breeding as well as the pet feed as the pet feed as a good or excellent pet animal," and thus, it constitutes a mark indicating the quality, efficacy, etc. of the designated goods as provided by Article 6 (1) 3 of the Trademark Act in a way of common use.

2. The parties' assertion

A. Grounds for revoking the trial decision of this case by the plaintiff's assertion

(1) Criteria for determining Article 6(1)3 of the Trademark Act

Whether a trademark constitutes a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of designated goods in a common way shall be determined objectively by taking into account the concept of the trademark, relation with the designated goods, the ordinary consumers or traders’ understanding and awareness of the trademark, the degree of perception of the trademark, the circumstances of the transaction society, etc. Even if the trademark appears to suggest or emphasize the quality, efficacy, and use of the designated goods, it does not constitute a trademark that cannot be recognized as indicating the simple quality, efficacy, use, etc. of the designated goods when considering the overall composition of the trademark.

(2) Whether the applied trademark of this case is technical trademark

(A) The meaning of "GLD"

The trademark of this case is a combination of ‘GOLD' and ‘PET' with meaning such as ‘gold, yellow, gold, gold, and gold,' and ‘PET' with meaning such as ‘pets, gold-like pets, gold-free pets, gold-free pets, gold-free pets, gold-free pets, and so on'. However, it is difficult to see that the portion of ‘GOLD' is generalized as a word indicating the quality and efficacy of ‘the highest, highest, and highest' meaning beyond its prior meaning.

Therefore, even if the "GOLD PET" is interpreted as a small pet animal like gold, it does not directly indicate the efficacy or quality of the "raw feed for breeding", which is the designated goods, and only makes it possible for them to be cryptly and formally.

(b) Failure to indicate the quality and efficacy of feed;

Although the applied trademark of this case allows us to have a positive sense that the trademark of this case is related to 'the precious pets and pets', such as gold, it does not indicate at all the high prices compared to the quality, efficacy, and quality of the feed, but only indirectly, it is possible to give positive results to the efficacy and quality of the designated goods.

(c)A cancer trademark;

Even if the trademark of this case is recognized as an excellent or excellent pet animal, the trademark of this case is not a technical mark that promptly explains information on goods, given that it is difficult for ordinary consumers to directly recognize the efficacy or use of ‘at least 10 feed for raising', which is designated goods, and the efficacy or use of ‘at least 10 feed for raising', which is a designated goods, and that there is a field, accident or various stages of drilling to reach the conclusion on the nature of the goods.

(D) Registration of other trademarks

In addition, even if a number of trademarks, including "GOLDCOPY" related to "Goldbits", "GOLDSPY", "GOLD SASH" related to windows, and "GOLD" related to new clothes, have been registered with distinctiveness recognition, the trademark of this case should be registered.

B. Defendant’s assertion

The trademark of this case is a mark indicating the meaning of the designated goods in a common way, and is a mark indicating the nature of the designated goods in a common way. "GOLD" is recognized as a good, excellent, excellent quality, and highest level between the general consumers in the real transaction society, and "PET" is recognized as a pet animal, and the trademark of this case connecting "GOLD" and "PET" is recognized as a pet animal, so the trademark of this case is recognized as an excellent, running, quality, excellent, highest, and highest level of pet animal.

In addition, the meaning of the "PET" portion of the applied trademark of this case is also narrow to that of the "highest quality" if combined with the "GAOD".

The trademark of this case is recognized as pets, excellent pets, highest pets, highest pets, highest pets, and quality or pets that can become the highest pets, and as feed with excellent efficacy if they are potable to pets such as dogs or pets.

3. Determination

A. Whether the applied trademark of this case is technical trademark

(1) Criteria for determination

According to Article 6 (1) 3 of the Trademark Act, a trademark consisting solely of a mark indicating the quality, efficacy, use, shape, etc. of designated goods in a common way shall not be registered. The purport of the provision is that a trademark indicating the matters listed in Article 6 (1) 3 is a technical (technical) mark indicating the characteristics of the goods for the purpose of describing the characteristics of the goods, and the function of distinguishing the goods is lost. In addition, even if there is a function of distinguishing the goods, it is not reasonable for the public interest to exclusively use it only for a specific person as a necessary mark in the transaction of the goods (see Supreme Court Decision 200Hu2149, Apr. 24, 2001).

(2) Specific determination

For this case, the trademark of this case is a character trademark consisting of ‘GLD' and ‘PET', such as ‘GOLD' and ‘GOLD', and the prior meaning of ‘PED', ‘PED' is each the word having the prior meaning of ‘probiated animal', ‘probient animal', ‘probient animal', ‘probient animal', and ‘GOLD' in our country', and the representative pet animal raised in our country can be perceived as a good and highest level in addition to the prior meaning in addition to the above prior meaning between ordinary consumers and customers. In light of the fact that the representative pet animal raised in our country is opening and being improved, the trademark of this case seems to be a good or good level of 'pet animal or good grade', ‘probient animal', ‘probient animal', ‘probient animal', ‘probient animal feed', ‘probient animal feed', and it seems to be the highest level of feed.

Even though the trademark of this case is called "pet animals, such as yellow gold," according to the prior meaning as alleged by the plaintiff, in relation to the designated goods, the trademark of this case is a trademark consisting solely of the mark indicating the quality, efficacy, and use of the designated goods in a common way, since it constitutes an animal that consumes feed, which is the designated goods, such as yellow gold, and thus constitutes the use of the designated goods.

Furthermore, the trademark of this case, if a pet animal breeds, wishes to be treated as a pet animal's 's pet animal' or a 's pet animal', and if a person manufactures or sells pet animal's feed, it is naturally anticipated to manufacture and sell pet animal feed by asking for that point, such mark as the trademark of this case, such as the trademark of this case, is a necessary indication to anyone who is the trader of the designated product, and therefore, it is unreasonable for the public interest to allow a certain person to exclusively use pet animal's feed.

B. Determination as to the assertion on registration precedents of other trademarks

The plaintiff asserts that the trademark of this case should be registered on the ground of the registration of other trademarks. Thus, the registration of each applied trademark should be independently determined whether the trademark of this case satisfies the trademark registration requirements as prescribed by the Trademark Act, and it cannot be said that the other trademark made by the similar principle should be registered on the ground that the trademark of this case is registered. Therefore, the plaintiff's above assertion is without merit.

4. Conclusion

Thus, the trial decision of this case is just, and the plaintiff's claim of this case seeking revocation is without merit, so that the trademark cannot be registered as a trademark by applying Article 6 (1) 3 of the Trademark Act to the applied trademark of this case.

Judges Cho Yong-ho (Presiding Judge)