[1] The meaning of "trademarks indicating trade names in a common way" under Article 51 Item 1 of the Trademark Act, and whether the trademark rights effect in cases where a corporate company omits a part of its trade names indicating the company's type while indicating its trade names (affirmative with qualification)

[2] The case reversing the judgment of the court below which held that the trademark " which is one of the (a) marks constitutes "a mark indicating a trade name under Article 51 subparagraph 1 of the Trademark Act in a common way"

[1] According to the main sentence of Article 51 subparagraph 1 of the Trademark Act, a trademark indicating one's trade name or the well-known abbreviation thereof in a common way shall not have the effect of a registered trademark right unless it is used for the purpose of unfair competition after the registration of establishment of the trademark right. The phrase "a trade name is indicated in a common way in the above law" means a trade name without having special distinctive character by expressing it in a special form, such as a unique character, color, design character, etc., and it shall be based on the premise that the general consumer can recognize the trade name. Thus, if a company fails to indicate the type of company in its trade name when it indicates it, unless it is widely known, it cannot be deemed that the ordinary consumer can recognize the trade name in a common way, and it cannot be deemed that the trade name of the company is merely an abbreviation, unless it is indicated in a special form, and it does not affect the trademark right even if it is indicated in a special form in accordance with the above law.

[2] The case reversing the judgment of the court below which held that the mark "(a)" is unlawful on the ground that it is not "a mark indicating a trade name in a common way" under Article 51 subparagraph 1 of the Trademark Act, since the mark "aro communication corporation", which is a corporate trade name, omitted the part "stock company," which is a type (type) mark of the company, and it does not constitute a trademark indicating a trade name "a trade name" itself, and if the trade name is used as an abbreviated name, it does not constitute "a trademark indicating a trade name in a common way" under Article 51 subparagraph 1 of the Trademark Act without considering the actual use situation of the trademark (service mark) unless the trade name is recognized as well as "a trademark indicating a trade name in a common way" under Article 51 subparagraph 1 of the Trademark Act, since it is judged that the mark "aro communication corporation" was used by the above company itself as its own trade name and it is well-known.

[1] Articles 2(3) and 51 subparag. 1 of the Trademark Act / [2] Articles 2(3) and 51 subparag. 1 of the Trademark Act

[1] Supreme Court Decision 97Hu2927 delivered on January 18, 2000 (Gong2000Sang, 484)

Korea Telecommunication Corporation (Patent Attorney Park Young-young, Counsel for defendant-appellant)

one telecommunications corporation

Patent Court Decision 200Heo3531 delivered on November 10, 2000

The judgment below is reversed, and the case is remanded to the Patent Court.

According to the main sentence of Article 51 subparagraph 1 of the Trademark Act, a trademark indicating his trade name or the well-known abbreviation of his trade name in a common way shall not have the effect of trademark registration unless it is used for the purpose of unfair competition after the registration of establishment of trademark right. The phrase "a trademark indicating trade name in a common way" in the above provision means not only a trademark that has a special distinctive character by expressing the trade name in a special form, such as a unique letter, color, or an instrumentized letter, but also a premise that the mark can be reported to enable ordinary consumers to recognize the trade name. Thus, if a company fails to indicate the type of company when it indicates its trade name, unless it is widely known, it cannot be deemed that ordinary consumers recognize the trade name in a common way, and it cannot be deemed that the company's trade name is merely an abbreviation of trade name, and such abbreviation does not affect the trademark right even if it is not indicated in a special form, under the above provision of the Trademark Act (see Supreme Court Decision 2007Hu27978, Feb. 9, 2007).

According to the reasoning of the judgment below, the court below determined that the registered service mark of this case and the mark of subparagraph (a) are identical and similar to all of the registered service mark of this case and the mark of this case consisting solely of Korean language "one word," with the same and similar appearance as a whole, and the two marks are identical and similar as a whole, and that the domestic and international telephone service business, the Internet and PC-based communication service business, and the Internet connection service business and the designated service business of the registered service mark of this case are all communications businesses through telephone or computer, etc. Further, the defendant as well as the general consumers as well as the defendant's main business sector, are called "one word service business" except for "stock company" of "one word service corporation" among the general business society, and the name of "stock company" is omitted, and the common service mark of this case is not used in the general service society (see Article 1).

(A) However, the mark "Iro Communication" is not "a trade name of the defendant company, but "a type of "stock company" but "trade name" itself cannot be deemed as a trademark indicating "a trade name". In addition, if a trade name is used as an abbreviation, unless the trade name is recognized as well as "a trade name" under Article 51 subparagraph 1 of the Trademark Act without considering the actual situation of the use of the trademark (service mark). In this case, the court below judged that "aro Communications" as the mark "Iro Communications" is used in a common way in a trade society with regard to the advertisement of service business provided by the defendant, and judged that the trade name of the defendant is used in the trade society with regard to the advertisement of the service business provided by the defendant, and without further examining whether the defendant's trade name "Iro Communications corporation" is well known, and therefore (a) the mark is ordinarily used as a trade name under Article 51 subparagraph 1 of the Trademark Act, and therefore, (a) as a trademark does not fall under the scope of the right of the registered service mark, the judgment of this case.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)