[1] Reasons for the provision of Article 6 (1) 3 of the Trademark Act and the standard for determining which trademark constitutes it / Whether this legal principle is equally applied to a service mark (affirmative)

[2] In a case where an examiner of the Korean Intellectual Property Office decided to refuse registration on the ground that the applied service mark " " "," which is a designated service business, constitutes an indication of the nature that is perceived as "place where a side business is introduced or provided," and the Intellectual Property Trial and Appeal Board dismissed Gap's appeal against this decision, the case holding that the applied service mark does not constitute a technical mark under Article 6 (1) 3 of the Trademark Act

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

[1] Supreme Court Decision 2005Hu2595 Decided January 26, 2006

주식회사 미디어윌네트웍스 (소송대리인 변리사 허용록 외 4인)

The Commissioner of the Korean Intellectual Property Office

Intervenor joining the Defendant

Patent Court Decision 2015Heo1614 decided September 18, 2015

The appeal is dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. Article 6(1)3 of the Trademark Act provides that a trademark cannot be registered with a mark consisting solely of a mark indicating the origin, quality, efficacy, use, etc. of goods in a common way means of common use is required for all persons to use the trademark by indicating it as necessary in the distribution process of goods, and thus, if such trademark is allowed to be used exclusively by a specific person, it is hard to distinguish the trademark from other goods of the same kind. Therefore, whether a trademark constitutes it should be objectively determined in light of the concept of the trademark, the relationship with the designated goods, and the situation of the trade society. Even if the trademark appears to have shown or emphasized the quality, efficacy, use of the designated goods, it does not constitute a mere quality, efficacy, use, etc. of the designated goods (see, e.g., Supreme Court Decision 2005Hu2595, Jan. 26, 2006). This legal doctrine also applies to the service mark under Article 2(3)3 of the Trademark Act.

2. The following facts are examined in light of the above legal principles and records.

The Plaintiff’s pending service mark (application number omitted) is comprised of “job placement business, job placement business, and employment information provision business” and “the designated service business.” The applied service mark of this case is combined with two words “Acheon Country” and “Acheon Country” and is composed of “Acheon Country,” and it has the concept of “a place that can be suitable for A P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P P PPP,” and it can be said that it is possible to introduce or mediate “a place that can be suitable for P P P P P P P P P PP,” as above, or to suggest that it provides related information to ordinary users, such as “place where it introduces or mediates A P P PPP or provides related information.” Moreover, even considering the circumstances of the transaction society, it does not constitute an unfair technical service mark under Article 6(1)1 of the Trademark Act.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on technical marks, thereby failing to exhaust all necessary deliberations

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the Intervenor joining the Defendant, and the remainder is assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)