Whether the trademark, on the basis of color, bearing a white sea line, falls under Article 7(1)2, 4, 6, and 11 of the Trademark Act (negative)

The trademark applied for registration is not merely used as a trademark by simply stating the name of the deceased person called MaZAR on the color basis, and it is merely used as a trademark by simply indicating the deceased person's name itself, and there is no indication of the relation with the deceased person, and it cannot be viewed as a trademark with a false indication of the relation with the deceased person under Article 7 (1) 2 of the Trademark Act. In addition, in the meaning of the applied trademark itself, the contents contrary to good moral sense or international trust cannot be derived. The other person under Article 7 (1) 6 of the Trademark Act refers to the surviving person. Since there is no evidence to recognize that the goods using the mark such as the applied trademark are domestically distributed to the general consumers in Korea, there is no possibility that consumers or traders recognize the applied trademark as a trademark as a trademark of other person, it is difficult to regard the applied trademark as a trademark as a trademark having a concern about the public order or good public morals under Article 7 (1) 4 of the Trademark Act or the name of other person under Article 7 (1) 6 of the Trademark Act.

Article 7(1)2, 4, 6, and 11 of the Trademark Act

Supreme Court Decision 97Hu242 delivered on July 8, 1997 (Gong1997Ha, 2521 delivered on July 11, 1997) and Supreme Court Decision 96Hu2173 delivered on July 11, 1997 (Gong1997Ha, 2521 delivered on July 11, 1997)

Applicant (Patent Attorney Seo-sung et al., Counsel for the applicant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 96Na416 dated February 28, 1997

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

A person shall be appointed.

The grounds of appeal are also examined.

According to the reasoning of the decision of the court below, the court below affirmed the decision of the court below that the "MZART" in the part of the text of the trademark applied in this case (hereinafter referred to as the "original trademark") is the same as the English name of the fake, which is widely known Austria across the world, and it constitutes a trademark whose name of the fake is falsely indicated as if there is no specific relationship with the fake, and that the name of the famous deceased person is registered and used without legitimate authority to take advantage of the reputation of the deceased person, thereby impairing the public order or good customs. In addition, there is a concern that it might disturb the international preferential relationship and trust, and that there is a possibility that ordinary consumers might be misunderstood as being in a specific relationship with the person with commercial use authority, such as the trademarkization, such as a well-known person or its name, and that the registration of the original source is refused under Article 7 (1) 2, 4, 6 and 11 of the Trademark Act.

However, in light of records and relevant Acts and subordinate statutes, the original trademark is merely used as a trademark by putting a white line on the ground of color, stating the name of the deceased person itself, and merely using it as a trademark. There is no indication of connection with the deceased person, and it cannot be viewed as a trademark which falsely expresses the relation with the deceased person under Article 7 (1) 2 of the Trademark Act. Further, in the meaning of the original trademark itself, it cannot be derived from the contents contrary to good moral sense or international confidence. Article 7 (1) 6 of the Trademark Act means the surviving person. Since there is no evidence to recognize that the goods using the mark such as the original trademark have been distributed in Korea to some extent, it is difficult to recognize the original trademark as a trademark by domestic ordinary consumers or traders as a trademark, it is difficult to see the original trademark as a trademark under Article 7 (1) 4 of the Trademark Act or 7 (1) 97 (1) 1 of the Trademark Act or 97 (2) 97).

Nevertheless, in different opinions, the court below erred by misapprehending the legal principles as to the provision of Article 7 (1) 2, 4, 6, and 11 of the Trademark Act, which affected the conclusion of the decision. The ground of appeal pointing this out is with merit (However, the records show that prior to the application of the original trademark, a trademark containing "MZART" is applied for and published in Chapter 27 of the classification of goods like the designated goods of the original trademark, and therefore, it seems that the similarity with the earlier application trademark is likely to be at issue).

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 Cho Chang-hun (Presiding Justice)