The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

In the case of so-called combined trademark composed of two or more parts, whether the trademark has distinctiveness by the whole composition of the trademark should be determined.

(1) Article 6(1)3 of the Trademark Act provides that a trademark consisting solely of a mark indicating a shape of goods in a common way shall not be eligible for trademark registration, and Article 6(1)3 of the Trademark Act does not provide that a trademark consisting of a combination of other distinctive signs, letters, diagrams, etc. on the ground that the three-dimensional shape includes a three-dimensional shape is not eligible for trademark registration, and there is no provision that a trademark should be determined by disregarding its combined symbols, letters, diagrams, etc. on the ground that the three-dimensional shape includes the three-dimensional shape, and thus, its distinctiveness should be determined based on only three-dimensional shape.

In addition, even if a trademark containing a three-dimensional shape without distinguishability is recognized as a trademark as a whole and registered trademark, the trademark right is not effective in a three-dimensional shape without distinguishability (Article 51(1) of the Trademark Act). As such, registration of such trademark is allowed to extend the effect of trademark right to the three-dimensional shape without distinguish character, and there is no concern that unfair results may result in restricting the use of another person.

Considering these points, trademark registration should not be denied on the ground that it is a trademark consisting of three-dimensional shapes, symbols, letters, diagrams, etc. and does not differ from other general trademark in determining its distinctiveness. Thus, trademark registration should not be refused on the ground that the combination of three-dimensional shapes itself does not have distinctiveness but falls under Article 6(1)3, etc. of the Trademark Act with respect to a trademark with distinctiveness as a whole.

The court below held joint and several liability.