In a case where Gap corporation filed a petition for a trial on invalidation of the registration against Eul-owner of the registered trademark " " "," whose designated goods "I extracted and processed local alcohol ingredients of sugar," the case holding that the registered trademark does not fall under Article 6 (1) 3 of the Trademark Act, but the Korean Intellectual Property Tribunal dismissed the petition, the case holding that the registered trademark does not fall under the above provision.

In a case where Company A filed a request for a trial to invalidate the registration of the registered trademark “ ” against the holder B of the right to the registered trademark “ ” using the designated goods “(s) local alcohol ingredients of sugar,” and the Korean Intellectual Property Trial and Appeal Board dismissed the trademark, the case holding that the trademark cannot be seen as a trademark indicating the quality or efficacy of the given and received local alcohol ingredients as a whole, since it cannot be seen as a trademark indicating the quality or efficacy of the given and received local food in a common way, rather than a general form, and the green in the chemical spug cannot be seen as a generally used color, and the trademark cannot be seen as a trademark or its distinctive character as a whole, in full view of the following: (a) the trademark is composed of a unique form consisting of the original form consisting of the shape of the designated goods “ ; (b) ; and (c) the quality or efficacy of the given and received local alcohol ingredients; and (d) the trademark cannot be seen as a trademark indicating the quality or efficacy of the goods in a common way.

Article 6 (1) 3 of the Trademark Act

Neow Stru Korea Co., Ltd. (Attorney Song-ho et al., Counsel for the defendant-appellant)

Defendant (Law Firm Shin & Yang, Attorney Kim Jong-hoon, Counsel for the defendant-appellant)

May 13, 2016

1. The plaintiff's claim is dismissed.

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

The decision made by the Intellectual Property Tribunal on January 5, 2016 on the case No. 2015Da4847 shall be revoked.

1. Basic facts

A. The registered trademark of this case

1) Date of application/registration decision/registration date/registration date/registration number: September 3, 2007 / June 11, 2008 / (registration number omitted) August 6, 2008

2) Composition:

3) Designated goods: The classification of goods is as shown in the attached Form 29, such as “health assistance food, etc. processed by extracting local alcohol ingredients of sugar.”

4) Right holder: Defendant

B. Details of the instant trial decision

1) On October 8, 2015, the Plaintiff filed a petition for registration invalidation trial against the Defendant with the Intellectual Property Tribunal on the ground that the registered trademark of this case falls under Article 6(1)3 of the Trademark Act in relation to “health assistance foods extracted and processed from local alcohol ingredients of sugar” among the designated goods under Chapter 29 of the classification of goods.

2) After examining it as 2015Da4847, January 5, 2016, the Korean Intellectual Property Tribunal rendered the instant decision dismissing the Plaintiff’s request for a trial on the ground that the instant registered trademark does not fall under Article 6(1)3 of the Trademark Act, on the ground that it is not a trademark consisting solely of a mark indicating in a common way the quality, efficacy, use, etc. of “health assistance food extracted from and processed with local alcohol ingredients of sugar” among the designated goods.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

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

The registered trademark of this case is a technical mark as a whole for the following reasons, and its registration should be invalidated as it falls under Article 6 (1) 3 of the Trademark Act, and the decision of this case with different conclusions should be revoked as it is unlawful.

① From among the designated goods of the instant registered trademark, “marbling which displays the core figures and core booms,” the use of “health-supporting foods,” which extracted local alcohol ingredients of sugar giving and receiving, and processed by extracting and processing local alcohol ingredients, is reduced.”

② Of the composition of the instant registered trademark, the parts of “LDL” and “HDL” are blood ingredients. The parts of “LDL” and “HDL +” mean that “LDL is low and high” and “HDL is high,” and thus, do not have distinctiveness, as they indicate the efficacy of polycop games, whose general term referring to natural local alcohol extractions extracted from plant productions.

③ Even if there is distinctive character in this shape, in light of the language -LL, and HDL +, when considering that the “LDL”, which lowers a low density part of the shape, is indicated on the niver fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor fluor d

3. Whether the registered trademark of this case falls under Article 6 (1) 3 of the Trademark Act

A. Relevant legal principles

Article 6(1)3 of the Trademark Act provides that “No trademark consisting solely of a mark indicating the origin, quality, efficacy, use, etc. of goods in a common way shall be registered.” The purport of the above provision is to request the public interest that any person needs to use it, and that it cannot be permitted to use it exclusively for a specific person because it is intended to use it, and there is reason to believe that it is difficult to distinguish it from other goods of the same kind if such trademark is permitted. Therefore, whether a trademark falls under this provision shall be objectively determined in light of the concept holding the trademark, the relation with the designated goods, the degree of ordinary consumers or traders’ understanding of the trademark, the degree of awareness of the trademark, the circumstances of the trade society, etc. Even if the trademark appears to have expressed or emphasized the quality, efficacy, use, etc. of the designated goods, the overall composition of the trademark does not constitute a technical mark that indicates the simple quality, efficacy, use, etc. of the designated goods, and it does not constitute 250 after 290.260 after 205.257.297

In addition, unless there is no room to see that diagrams, signs, etc. are merely incidental or auxiliary to a trademark combining letters, diagrams, signs, etc., the determination of whether a trademark constitutes a technical mark shall be made based on the composition of the entire trademark combining letters, diagrams, signs, etc., and the parts constituting the trademark shall not be removed and determined as one (see Supreme Court Decision 90Hu1208, Mar. 27, 1991).

B. Determination

1) The instant registered trademark is a trademark consisting of diagrams, letters, symbols, and colors as “”. First, in the center, the shape of red fluorial diagrams and the shape of a gluorial pattern in green with a strong color gluorial color, which includes a fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluor.

2) The term “HDL” and “LDL” are placed inside the diagrams of the instant registered trademark in English and in English. According to the Liberian school affairs, “HDL” mean “HDL” as the medicine of “Hgh Liprotein,” and “LDL” means “Low Liprotein,” and “LDL” means “HDL” as the medicine of “Low Liprotein, low density, short density,” and according to the results of NAV search, “HDL” means a high level, e.g., a part of the traders, and “LL” means a high level, e.g., a bad call tower, and it appears that “LDL” is regarded as a bad call tower (Evidence Nos. 3 through 6).

3) Of the composition of the instant registered trademark, it is difficult to view that the diagrams, flus (+), and maths (-) signs in the shape of red and green glus are merely incidental or auxiliary to the composition of the instant registered trademark. There is a combination of each constituent part to the extent that the instant registered trademark can function as an identification mark of another product. Accordingly, according to the aforementioned legal doctrine, whether the instant registered trademark constitutes a technical mark ought to be determined on the basis of the entire composition consisting of figures, letters, signs, etc., combined with one part constituting the instant registered trademark, instead of determining whether the instant registered trademark constitutes a technical mark.

4) According to the overall observation of the registered trademark of this case, ① the shape of the chemical scambling is not in the general form, but in the form of dials, ② the green scambling is not generally used. ③ the shape of the chemical scambling is placed inside the scambling pattern with ‘HD+', and ④ the number code combined with English scambling is placed differently in the front and rear of the English scambling, and ⑤ the shape of the chemical scambling in the shape of red scambling inside the red scambling shape. Furthermore, even if the trademark of this case is composed of the concept of the parts constituting the trademark of this case, the trademark of this case is not in the form of “high scambling scamls (HDL),” and the trademark of this case can not be seen as having any other part of the registered trademark of this case scambling or hambling the quality of the trademark of this case.

C. Sub-decision

Therefore, the registered trademark of this case is a mark with distinctiveness as a whole, and it is difficult for ordinary consumers or traders to recognize that the trademark of this case is a simple quality, efficacy, use, etc. of the designated goods. Thus, it does not fall under Article 6 (1) 3 of the Trademark Act.

4. Conclusion

The trial decision of this case is legitimate in conclusion, and the plaintiff's claim seeking revocation is dismissed as it is without merit.

[Attachment] Designated Goods of the instant registered trademark: omitted

Judge O Young-young (Presiding Judge) Kim Dong-dong Kim Dong-dong