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

[2] The case reversing the judgment of the court below that the registered trademark "JEWR" among the registered trademark "STAR JEWY" with Damond and hond as designated goods is a common name of the designated goods and thus has no distinctive character, but merely indicates the quality and character of the designated goods and thus does not fall under Article 6 (1) 3 of the Trademark Act

[1] Article 6 (1) 3 of the Trademark Act / [2] Article 6 (1) 3 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 2005Hu2595 Delivered on January 26, 2006, Supreme Court Decision 2004Hu2246 Delivered on April 14, 2006

[Defendant-Appellant] Shaki ju (Attorney Lee Im-soo et al., Counsel for defendant-appellant-appellant)

Jeong Jae-ho (Patent Attorney Cho Jae-ho et al., Counsel for the defendant-appellant)

Patent Court Decision 2005Heo3765 Decided September 1, 2005

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

The grounds of appeal are examined.

Whether a trademark constitutes a trademark consisting solely of a mark indicating the quality, efficacy, use, etc. of designated goods in a common way shall be objectively determined by taking into account the concept of the trademark, relation with the designated goods, the ordinary consumers or traders’ understanding and awareness of the trademark, and the circumstances of the trade society, etc. If the trademark indicates the quality, efficacy, and use of the designated goods, it does not constitute such trademark (see Supreme Court Decision 2005Hu2595, Jan. 26, 2006).

According to the reasoning of the judgment below, the court below determined that the part of the registered trademark of this case (No. 522702) composed of “STR JEWY” was not distinctive as ordinary name of the above designated goods, and that the part of “JEWRY” is not recognizable as ordinary name of the above designated goods, and is beyond the degree of expressing or emphasizing the character of the above designated goods between ordinary consumers or traders, and that the meaning of “STSR” and “DD by others or by others,” and ultimately, the registered trademark of this case should be null and void because it has no distinctive character as to the above designated goods.

However, among the registered trademarks of this case, the term “STS” means the original meaning of “A separately” and the term “JEWRY” is the term as bail, and the term is the English language that can easily understand the meaning of “JEWR” among the registered trademarks of this case by ordinary consumers or traders in light of the English diffusion level in Korea. The term “JEWR” part of the registered trademark of this case is nothing more than the ordinary names of the above designated goods, but has no distinctive character. It seems that the term “STAR” part is more indirectly connected than those directly related to the above designated goods, and it cannot be said that the meaning of “STSAR” can be said to be directly related to that of the above designated goods because it is not different from the actual use condition in the trade society. Nevertheless, the court below erred by misapprehending the legal principles on technical trademarks, which affected the conclusion of the judgment, which affected the conclusion of the judgment. Thus, the ground of appeal assigning this error is with merit.

Therefore, without further proceeding to decide on other grounds of appeal, 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 Lee Hong-hoon (Presiding Justice)