The case holding that the applied trademark " constitutes "a trademark which does not distinguish a consumer's goods related to a person's business" under Article 6 (1) 7 of the Trademark Act

The case holding that the part of "GPS" of the applied trademark " " is a trademark which does not distinguish between the designated goods related to the location tracking of the designated goods from the designated goods, and its distinctive character is weak as it is directly known to ordinary consumers as being used for the designated goods, and the part of "ONE" also is a simple and shaking word, and its distinctive character is weak as well as a new concept is not formed by the combination of "GPS" and "ONE", on the grounds that the trademark applied for registration does not constitute "a trademark which does not distinguish consumers from whom they indicate the goods related to anyone's business" under Article 6 (1) 7 of the Trademark Act.

Article 6 (1) 7 of the Trademark Act

콸콤 인코포레이티드 (소송대리인 변호사 최승욱)

The Commissioner of the Korean Intellectual Property Office

February 10, 2006

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 September 15, 2005 on the case No. 2005 Won1237 shall be revoked.

1. Details of the trial decision;

A. The Korean Intellectual Property Office rendered a decision of refusal on the ground that the trademark of this case filed by the Plaintiff falls under Article 6(1)7 of the Trademark Act, and the Korean Intellectual Property Trial and Appeal Board rendered a decision of refusal as to the Plaintiff’s appeal against the said decision of refusal on the ground that “GPS” in the trademark of this case is not distinctive as it indicates the use of designated goods, and “ONE” is merely a simple and solid mark that has no distinctive character, and it does not form a new concept by combining these characters.

B. The applied trademark of this case

(1) Date: Number of the application on September 12, 2001: No. 2001-40549

(3) Composition:

(4) Designated goods: A computer software subject to the trends in the location of a wireless telephone, a computer software subject to the trends in the location of a data communication device, a computer software subject to the trends in the location of a data communication device, a computer software subject to the trends in the location of a data communication device, a computer software for data communication device, a computer for data communication device, a computer computer for data communication device, a data communication device, a computer software for a data communication device

【Ground for Recognition: No dispute exists】

2. Determination as to the legitimacy of the trial decision

A. The plaintiff's assertion

(1) The trademark of this case is a group of six English and composed of a series of identical trademarks. The trademark of this case is recognized as a group of ordinary consumers and traders, and it is recognized as a whole, and thus, referred to as "z. S. E.P. source, even if the "GPS has no distinctiveness," the meaning of the "ONE" cannot be deemed to be simple and shaken, and thus, its distinctiveness is recognized as not only because the "ONE" does not fall under the mark indicating the quality, use, or efficacy of the designated goods, and thus, it cannot be deemed as contrary to the public interest even if a specific person exclusively uses it. Thus, the trademark of this case is recognized as a whole.

(2) The trademark of this case as to the Plaintiff’s location information tracking technology is widely recognized as the Plaintiff’s identification mark in Korea, and its distinctiveness is recognized through the use under Article 6(2) of the Trademark Act.

(3) The mark identical to the applied trademark of this case was registered as a trademark with the recognition of the distinctive character of one’s own goods in each country, including the United States, Canada, and Australia.

(b) Markets:

(1) Whether it falls under Article 6 (1) 7 of the Trademark Act

"Trademarks other than those referred to in subparagraphs 1 through 6 of Article 6 of the Trademark Act, which does not enable consumers to distinguish whose business the source of a trademark does not fall under subparagraphs 1 through 6 of the same Article, means a trademark which does not fall under any of subparagraphs 1 through 6 of the same Article, i.e., it is impossible to distinguish the source of the trademark between his goods and other goods. In other words, a trademark with no special distinction cannot be registered. Whether a trademark is a trademark with a special distinction should be determined objectively by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the trade society, etc. (see Supreme Court Decision 96Hu979 delivered on February 28, 1997).

In light of the purport of the entire pleadings, the trademark of this case is a text trademark consisting of six Gabal alphet 6 in English, such as “,” and comprehensively taking account of the overall purport of the pleadings, the term “GPS” is the weak of “Global Posing Sym”, and the term “GPS” is the weak of “Global Posing Sym”, and the term “GPS” is widely used around November 23, 2004, which is the date of the decision of refusal of the application of this case’s trademark, around November 23, 2004. According to the above facts, the term “GPS” is widely recognized as meaning “a system that checks the location using satellite” or “a system that checks the location using satellite” by ordinary consumers around the time of the decision of refusal of the application of this case’s trademark. In addition, the term “ONE” is merely an English range that is easily known to ordinary consumers in Korea.

In light of the above circumstances, although the trademark applied in this case consists of 6 in English letters without being kept, ordinary consumers or traders can easily recognize the trademark applied in this case as "GPS" and "ONE". Among the designated goods of the applied trademark in this case, the part of "GPS" in this case is directly sensed as indicating the use of designated goods to ordinary consumers, and its distinctive character is weak, and the part of "ONE" is also a simple and sealed word, and its distinctive character is not only formed by the combination of "GPS" and "ONE", so it is difficult for ordinary consumers or traders to recognize the source of the designated goods by the applied trademark in this case and distinguish their own goods.

Therefore, the applied trademark of this case is a trademark which does not identify whose business it indicates goods to consumers under Article 6 (1) 7 of the Trademark Act.

(2) As to whether the trademark of this case was remarkably perceived by the prior use of the trademark at the time of the decision to reject the application, it is not sufficient to recognize the trademark solely with the descriptions of the evidence Nos. 5 and 7, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion on this part is without merit

(3) Even if the marks identical to the applied trademark of this case are registered in a foreign country, whether or not the trademark is qualified for registration shall be determined individually in relation to the designated service business, and further, whether or not the registration of the applied trademark is made under the Korean Trademark Act shall be determined independently in relation to the designated goods under the Korean Trademark Act, and the legal system does not go through any other foreign registration example. Therefore, the plaintiff's assertion on this part

(4) Therefore, the trademark applied in this case cannot be registered under Article 6(1)7 of the Trademark Act. Thus, the decision of this case as to this conclusion is justifiable.

3. Conclusion

The plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.

Judges Lee Sung-ho (Presiding Judge)