[1] Purport of Article 6(1)3 of the Trademark Act and the standard for determining whether a trademark is a technical (technical) mark

[2] The case holding that the applied trademark " does not constitute a mark indicating in a common way the shape of goods"

[1] The purport of Article 6 (1) 3 of the Trademark Act is that a trademark consisting solely of a mark indicating the shape of the designated goods in a common way is a technical mark indicating the characteristics of the goods for the purpose of describing the characteristics of the goods, and thus loses the function of distinguishing the goods from others. Even in a case where there is a function of distinguishing domestic goods, it is unreasonable for anyone in the transaction of goods to exclusively use the goods only to a specific person on the part of the transaction because it is not appropriate for the public interest. Whether a trademark constitutes a trademark consisting solely of a mark indicating the shape, etc. of the designated goods in a common way shall be determined objectively by considering the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc.

[2] The case holding that the applied trademark " " " cannot be viewed as a trademark which is applied for trademark by ordinary consumers, and it is hard to see that the shape of the saw, which is the designated goods, is applied to the trademark, and even if the shape of the saw, which is the designated goods, is included to a certain degree, it does not constitute a mark which is usually expressed in a normal way, since the shape is very simple and simple, and is not a mark which has distinctiveness.

[1] Article 6 (1) 3 of the Trademark Act / [2] Article 6 (1) 3 of the Trademark Act

[1] Supreme Court Decision 99Hu2440 decided Feb. 22, 2000 (Gong2000Sang, 845)

Kafman (Patent Attorney Cha Sung-sung et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

November 18, 2004

1. The decision made by the Intellectual Property Tribunal on August 31, 2004 on the case No. 2003 Won497 shall be revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant trial decision

A. On December 24, 2001, the Plaintiff applied for the registration of the applied trademark of this case, but the Korean Intellectual Property Office rendered a decision of refusal on October 21, 2003 on the ground that the trademark of this case was a trademark falling under Article 6 (1) 3 of the Trademark Act on the ground that the trademark of this case was a trademark falling under the category of the designated goods when it was used on a saw day, by indicating the shape of the saw day.

B. Accordingly, on November 18, 2003, the Plaintiff filed an appeal against the decision of refusal with the Korean Intellectual Property Tribunal. However, the Korean Intellectual Property Tribunal deliberated on this case as the case of 2003 Won4497, and on August 31, 2004, the Korean Intellectual Property Tribunal rendered the decision of dismissal of the Plaintiff’s appeal with the purport that the trademark of this case did not indicate any character or number, and the trademark of this case is narrow and narrow and narrow and narrow to the right side of the upper end of the day due to the transformation of the long length, which is a figure trademark where the door, the top part of the end part of the saw, is a designated goods, and it is not recognized that it has a unique distinctive character, because it was directly reduced to the shape of one day among several days of the saw. Thus, it constitutes Article 6(1)3 of the Trademark Act.

C. The content of the applied trademark of this case is as follows.

(1) Composition:

(2) Applicant: The plaintiff

(3) Date/application number: December 24, 2001 / 201-57479

(4) Designated goods: saws (sw Blades) (Class 8 classified into goods)

【Evidences Nos. 1, 2, and 3, and No. 1

2. Whether the trial decision of this case is legitimate

A. Summary of the grounds for revocation of the Plaintiff’s trial decision

The figure of the applied trademark in this case is rather than the shape of "day of cutting function" which can be called the basic form of the saw day, but rather, it makes the home unique and confluent visual increase in the shape of the saw package. At the end, it is a mark with distinctive character as a figure itself, and it is not a mark indicating in a common way the general form of "saw" which is the designated goods, and it cannot be said that the exclusive use of the trademark in this case is contrary to the public interest. Thus, the trademark in this case does not fall under Article 6 (1) 3 of the Trademark Act.

(b) Markets:

(1) Whether the applied trademark of this case constitutes Article 6(1)3 of the Trademark Act

(A) According to Article 6(1)3 of the Trademark Act, a trademark consisting solely of a mark indicating the shape, etc. of the designated goods in a common way shall not be registered. The purport of the above provision is not only the case where a trademark consisting solely of a mark indicating the shape, etc. of the designated goods in a common way is lost the function of distinguishing the goods because it is a technical (technical) mark indicating the characteristics of the goods for the purpose of describing the characteristics of the goods, but also the case where a trademark consisting of a trademark indicating the shape, etc. of the designated goods in a common way, but also the case where a trademark has a function of distinguishing domestic goods, even if it is a case where a trademark has a function of distinguishing domestic goods, it is rejected as it is not reasonable in the public interest to exclusively use the trademark as a trademark indicating the shape, etc. of the designated goods in a common way. Whether it is a trademark consisting solely of a trademark indicating the shape, etc. of the designated goods in a common way shall be determined objectively by taking into account the concept carried by the trademark, relation with the designated goods,

(B) From this perspective, we examine whether the trademark of this case is a trademark consisting solely of a mark indicating the shape of the designated goods in common.

In full view of the purport of the argument in Gap evidence No. 2, the trademark applied in this case is a figure with color, and its upper width is narrow and narrow and its length is left left and right, and it is in the same form as a whole, and as a result, the trademark applied in this case is recognized as having a shape that seems to reach the longer end rather than the shape of the day having the basic cutting function of the saw. Thus, it is difficult for ordinary consumers to regard the trademark applied in this case as the trademark in this case as being designated as the designated goods, or directly reduces the shape on the day after reporting the part at the right right end of the saw, which is the designated goods. Even if the trademark in this case contains a certain degree, the trademark in this case does not directly reduce its nature, but constitutes a trademark in a very simple and simple way, and thus, it does not constitute a trademark in the form of a mark.

(2) Sub-committee

Therefore, the applied trademark of this case cannot be considered as a trademark consisting solely of a mark indicating the shape of goods in a common way, and it does not fall under Article 6 (1) 3 of the Trademark Act, and the decision of this case, which has different conclusions, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition.

Judges Park Dong-dong (Presiding Judge)