[1] Criteria for determining whether a trademark constitutes a technical (technical) mark under Article 6(1)3 of the Trademark Act

[2] The meaning of "a trademark likely to mislead or mislead the quality of goods" under Article 7 (1) 11 of the Trademark Act

[3] The case holding that the registered trademark "COLR CON" constitutes a technical (technical) trademark under Article 6 (1) 3 of the Trademark Act when it is used on the concrete typology, projected concrete, and projected concrete typology among the designated goods, and the registered trademark "COLR CON" constitutes a quality-based trademark under Article 7 (1) 11 of the Trademark Act when it is used on the asphalt, projected concrete, projected concrete date, projected concrete date, and typile, asphalt, asphalt typher, or asphalt, among the designated goods

[1] Article 6 (1) 3 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act / [3] Article 6 (1) 3 and Article 7 (1) 11 of the Trademark Act

[1] Supreme Court Decision 9Hu2440 delivered on February 22, 200 (Gong2000Sang, 845) Supreme Court Decision 2002Hu1140 Delivered on August 16, 2004 (Gong2004Ha, 1552) Supreme Court Decision 2004Hu2246 Delivered on April 14, 2006, Supreme Court Decision 2005Hu2786 Delivered on July 28, 2006 / [2] Supreme Court Decision 99Hu628 Delivered on October 13, 200 (Gong200Ha, 2358) Supreme Court Decision 204Hu592 Delivered on April 14, 2006

Korea Petroleum Industry Corporation (Patent Attorney Han-ho et al., Counsel for defendant-appellant)

Sam-kack Co., Ltd. (Patent Attorney Kim Byung-jin et al., Counsel for the defendant-appellant)

Patent Court Decision 2006Heo7078 Decided December 21, 2006

The part of the judgment below against the plaintiff shall be reversed, and that part of the case shall be remanded to the Patent Court.

The grounds of appeal are examined.

Whether a trademark constitutes "a mark indicating the origin, quality, efficacy, use, shape, etc. of goods in a common way" under Article 6 (1) 3 of the Trademark Act shall be objectively determined by taking into account the concept of the trademark, the relationship with the designated goods, the circumstances of the transaction society, etc. (see Supreme Court Decisions 9Hu2440, Feb. 22, 200; 2002Hu1140, Aug. 16, 2004; 2002Hu140, Aug. 16, 2004; hereinafter referred to as "trademark which is likely to mislead consumers of the quality of goods" under Article 7 (1) 11 of the Trademark Act, means a technical mark where it is possible for consumers to directly indicate the quality, efficacy, shape, etc. of the designated goods in consideration of the designated goods. In addition, "a trademark that is likely to mislead consumers as to the quality of goods" refers to a trademark that has a nature different from the original nature of the designated goods.

According to the facts and records acknowledged by the court below, the designated goods are "Emar, asphalt, francel, asphalt, asphalt, concrete beta, projected concrete, projected concrete, and projected concrete," and the registered trademark of this case (COLOR No. 34233) composed of "COLR CON," around June 10, 1996, the specific industry or the industry related to construction, with the word "responding concrete," so it is widely used as colorless concrete of the identical product, so it can be seen that there is no possibility that they can be used in colorless concrete of the existing business, and in case of non-disponding concrete products, there is no possibility that they can be used in colorless concrete of the identical product."

Therefore, the registered trademark of this case constitutes a technical trademark consisting solely of a mark indicating the nature of the designated goods in a common way or a trademark likely to mislead the quality of goods.

Nevertheless, the judgment of the court below which judged that the registered trademark of this case does not constitute a technical trademark or quality misleading trademark against the designated goods on the ground that the blade does not mean a particular color, but generally the previous concrete or asphalt does not directly indicate the common nature of the blade as it serves as a vegetable alcoholic beverage, and that the blade has a variety of meanings other than the abbreviation of concrete. The judgment below erred by misapprehending the legal principles under Articles 6(1)3 and 7(1)11 of the Trademark Act, which affected the conclusion of the judgment.

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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)