기술표장과 암시표장의 식별력 판단방법

Distinction of Descriptive and Suggestive Marks

Many fanciful or suggestive marks have been rejected by the Korean Trademark Office and the Korean Patent Court as they are interpreted descriptive. Such rejection is occurred by wrong under standing of basic concept of trademark, particularly dissecting or analyzing of a mark and translating of a mark instead of examining the mark in itself. The method of determining descriptive or suggestive should be analytical, logical and objective. However, in many Court or Patent Office cases, it is not. The principal tests used to make the distinction involve (1) the degree of imagination required to reduce a description of the product from the mark, (2) the degree to which the words in question would be needed by competing firms to describe their goods, and (3) the degree to which other merchants have actually been using the words in question to describe their goods. Distinction of coined, fanciful and descriptive can be easily carried out by looking for the words in a language dictionary. In some cases, foreign registrations are submitted for distinction of suggestive and descriptive. However, in these cases, the foreign registrations are not acceptable for evidences because the law and regulations are different from each other. In the trademark system, although the law and procedure are different in partial, the distinction of suggestive and descriptive is not different.