Date of
Judgment:
10.04.1979
Issuing
Authority: Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure:
Judicial (Administrative)
Subject
Matter: Trademarks
Main
text of the judgment (decision):
1. The final appeal shall be
dismissed.
2. Appellant shall bear the cost of the final appeal.
Reasons:
Regarding Reasons 1 through 3 for the
final appeal according to the attorneys representing Appellant, namely; ●●●●, ●●●●, ●●●●,
and ●●●●.
Article 3, paragraph (1), item (iii)
of the Trademark Act stipulates that the trademark listed therein lacks the
requirements for trademark registration. This provision should be interpreted
as follows: Such trademark consists of a mark indicating, in the case of goods,
the place of origin, place of sale, and other features, and since any person
would desire to use the same as a necessary and appropriate indication in a
transaction, it is not appropriate, in light of public interest, to grant to a specific
person the exclusive use of the trademark; and since such trademark consists of
a commonly used mark, which lacks distinctiveness in many cases, the trademark fails
to perform the function of a trademark. When a trademark, which is as described
above, is used for goods, it is not infrequent for the trademark to be misleading
as to the place of origin, place of sale, and other features of the goods. However,
it must be said that this concerns the issue of whether or not such trademark falls
under Article 4, paragraph (1), item (xvi) of the Trademark Act, and that this
is not an issue that concerns Article 3, paragraph (1), item (iii) of the
Trademark Act. In that case, there is no reason for interpreting, as per the
asserted opinion, that a "trademark which consists solely of a mark
indicating, in a common manner, the place of origin and place of sale for the
goods", as stipulated in the above item (iii), means, restrictively, a
trademark which consists solely of a mark indicating, in a common manner, the
place of origin and place of sale, as they are widely known, for the goods and
which is likely to be misleading as to the place of origin and place of sale
when used for the goods.
In the trial of the prior instance,
the court found and ruled that the Trademark, in relation to the designated
goods, consists solely of a mark indicating, in a common manner, the place of
origin and place of sale for the goods, and that the Trademark, when used for
its designated goods, is likely to be misleading as to the place of origin and
place of sale, and falls under the trademark listed in Article 3, paragraph
(1), item (iii) and Article 4, paragraph (1), item (xvi) of the Trademark Act.
This finding and ruling by the court can be approved as justifiable in light of
the evidence listed and the explanation provided in the judgment in prior
instance, and there is no illegality with the process, as stated in the
asserted opinion. The gist of the argument cannot be accepted.
Regarding Reason 4 for the final
appeal.
The asserted opinion criticizes the
judgment in prior instance based on the premise that if the Trademark is used
for the designated goods, excluding perfume, there is no risk of the trademark
being misleading as to the place of origin and place of sale for the goods.
However, since the Trademark, when used for the above designated goods, is
likely to be misleading as to the place of origin and place of sale for the goods,
as described above, the finding and ruling by the judgment in prior instance
are justifiable, and thus the asserted opinion is unreasonable due to the lack
of its premise. The gist of the argument cannot be accepted.
Therefore, the judgment of this court
is rendered unanimously by all judges, as per the main text, by application of
Article 7 of the Administrative Case Litigation Act and Articles 401, 95, and
89 of the Code of Civil Procedure.
(This translation is
provisional and subject to revision.)