[1] The elements for not constituting a simple and ordinary mark under Article 6(1)6 of the Trademark Act for a mark which designs commonally used diagrams

[2] The case holding that the trademark of the applied trademark consisting of "" was composed solely of a simple and ordinary mark

[1] In the case of a mark which designs commonally used diagrams, the degree of the design does not constitute a "short and ordinary mark" under Article 6 (1) 6 of the Trademark Act, which is recognized as above the original meaning of the figure to ordinary consumers or traders, or which leads special attention.

[2] The case holding that the above mark is composed solely of a simple and ordinary mark, on the ground that: (a) the figure of the applied trademark consisting of “” is in the shape of a mamond, the width of the belt is wide, and the size of the belt was displayed twice; (b) the degree of such design alone is more recognized than the meaning of a mamond figure or that it does not reach the degree of special attention to ordinary consumers or traders; and (c) the mark is composed of a simple and ordinary mark

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

[2] Supreme Court Decision 96Hu1187 delivered on February 25, 1997 (Gong1997Sang, 941) Supreme Court Decision 2003Hu2942 delivered on November 26, 2004 (Gong2005Sang, 60) Supreme Court Decision 2003Hu1741 Delivered on September 28, 2005

Woo Robro Round (Attorney Gong Chang-hun et al., Counsel for the plaintiff-appellant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2006Heo5768 Decided October 27, 2006

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

We examine the grounds of appeal.

The court below held that the trademark of this case (application number omitted) composed of "the trademark of this case" does not fall under a simple mark because the trademark of this case (application number omitted) is in the shape of a mast or multimond figure, and the width of the belt is wide, and it does not fall under a simple mark, even if simple, it does not fall under a common mark.

However, in the case of a mark which designs commonally used diagrams, the degree of the design does not constitute a simple and ordinary mark which is recognized beyond the original meaning of the figure to ordinary consumers or traders or which leads special attention. Thus, the mark of the applied trademark of this case is somewhat next to the mark of this case, but it maintains the basic form of a marina or multimond figure, while it can be seen that the size of the belt is wide, but it connects the same size of the belt in a specific form. Thus, the degree of the design of this case is difficult to view that the mark of this case is more than the meaning of the figure of the ordinary consumers or traders, or that it is a simple and ordinary mark to attract special attention. Accordingly, the court below erred by misapprehending the legal principles as to the trademark of this case, which affected the conclusion of the judgment, and thus, it cannot be seen as a simple application for the trademark of this case, which affected the conclusion of the judgment.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)