정보 전달 상표의 식별력 판단에 대한 비판적 고찰

Critical Study on Determining Distinctiveness of a Trademark Conveying Information

The Supreme Court Decision 2016Hu526 Decided July 10, 2019 determined on denying distinctiveness of a trademark conveying information in ChargeNow Case and admitting that the combined mark “plug shaped figure + ChargeNow” was a descriptive trademark since the mark had no Exclusive adaptability in related business circles and related competitors had need of free use on the mark. Accordingly, the Supreme Court decided that Judgement of the lower court(the Patent Court Decision 2015Heo3993 Decided February 3, 2016) was reversed and the case was remanded to the Patent Court. The above Patent Court Decision had serious mistakes in determining distinctiveness of a trademark conveying information. Therefore, The above Patent Court Decision may cause unnecessary misunderstanding by such mistakes among patent attorneys dealing with trademark cases. Especially, the Patent Court should not have judged that a trademark should be also registered by deciding non-descriptive mark in Korea based on precedents of trademark registration in other countries. On the other hand, it is important to determine descriptiveness in Art.6 Para.1 Item.3 and Art.6 Para.1 Item.7 of Trademark Act on the whole of the marks as well as each component part for combined marks in this case. But this paper indicates that the Patent Court misunderstood the above principle of law in judging this case. We need to study concretely on several practical issues about determining descriptiveness of a trademark conveying information by considering this case s situation. In conclusion, this paper suggests reasonable interpretation directions for determining distinctiveness of a trademark conveying information after analyzing the problems on both decisions(the Supreme Court Decision 2016Hu526 and the Patent Court Decision 2015Heo3993) in ChargeNow case.