[1] Whether the trademark "JAMFDN" constitutes a trademark with a false relation with a well-known deceased person (negative)

[2] The case holding that a trademark using a well-known deceased person's name is not a trademark which is likely to disturb public order or good public morals, or to mislead consumers

[1] The applied trademark "JAMES DEN" does not merely use the name of the person itself as the trademark, but does not constitute a trademark whose relationship with the person under Article 7 (1) 2 of the Trademark Act is falsely indicated without any indication as to the relation with the person.

[2] The case holding that the trademark cannot be seen as a trademark which is likely to disrupt the public order or good customs under Article 7 (1) 4 of the Trademark Act, or which is likely to mislead consumers under Article 7 (1) 11 of the Trademark Act, unless there is evidence to acknowledge that the contents of the trademark, such as the applied trademark, cannot be derived from being contrary to good moral sense or international confidence within the meaning of the applied trademark itself, and the goods using the trademark, such as the applied trademark, are distributed in Korea to a certain extent, and there is no possibility for consumers or traders to recognize the applied trademark as the trademark as the trademark for other goods in Korea

[1] Article 7 (1) 2 of the Trademark Act / [2] Article 7 (1) 4 and 11 of the Trademark Act

[1] [2] Supreme Court Decision 97Hu242 delivered on July 8, 1997 (the same purport), Supreme Court Decision 97Hu82 delivered on July 11, 1997 (the same purport), Supreme Court Decision 97Hu82, 99 delivered on July 11, 1997 (the same purport), Supreme Court Decision 97Hu259 delivered on July 11, 1997 (the same purport) / [1] Supreme Court Decision 95Hu811 delivered on September 15, 1995 (Gong195Ha, 3404) / [2] Supreme Court Decision 91Hu318 delivered on December 10, 191 (Gong192, 519, 519), Supreme Court Decision 23Hu2939 delivered on July 23, 293 (the same purport)

Applicant (Attorney Park Byung-hoon et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 95Na1791 dated October 30, 1996

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal.

According to the reasoning of the decision of the court below, the court below maintained the registration of the court below pursuant to Article 7 (1) 4 and Article 7 (1) 1 of the Trademark Act on the ground that the trademark of this case (the applied trademark on January 20, 1994; hereinafter referred to as the "original trademark") "JAMFDD" was composed of English names in the United States, which died worldwide on September 30, 1955, and whose name is falsely indicated as if there is no specific relationship with JAMFDDD, and it is a trademark whose name was falsely indicated as if there is no specific relationship with the original trademark in the name of the original trademark of this case. In addition, there is a concern that it might disturb the fair and reliable trade order by registering and using a well-known name to take advantage of the reputation of the deceased, and there is a concern that ordinary consumers may mislead or confuse the source of goods as being related to a specific relationship with the person who has commercial right, such as the name of the above person.

However, according to records and relevant Acts and subordinate statutes, the original trademark is merely a trademark which simply uses the name of the person as the trademark, and it does not constitute a trademark which falsely expresses the relationship with the person under Article 7 (1) 2 of the Trademark Act because there is no indication about the relationship with the person. Further, it cannot be seen as a trademark which is contrary to good moral sense or international trust within the meaning of the original trademark itself. Since there is no evidence to prove that the goods using the mark such as the original trademark have been distributed domestically to the general consumers in Korea, so long as there is no evidence to prove that the goods using the mark such as the original trademark have been perceived to some extent, consumers or traders are not likely to recognize the original trademark as the goods of others, it cannot be deemed that the original trademark is a trademark which might disturb the public order or good customs under Article 7 (1) 4 of the Trademark Act, or that there is a concern for only consumers under Article 7 (1) 11 of the Trademark Act.

Nevertheless, the court below erred by misunderstanding the legal principles as to the provision of Article 7 (1) 2, 4, and 11 of the Trademark Act, which rejected the registration of the original trademark as it falls under the above different opinions, and thereby affecting the conclusion of the decision. Therefore, the ground for appeal pointing this out is with merit.

Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)