Florists win lawsuit filed by German rose giant

In Korean Florist Association v Kordes (2001Hu2283), a group of Korean flower producers has won a lawsuit filed by German rose giant Kordes in connection with its trademark rights in 'Red Sandra' and 'Kardinal', two rose breeds. The Supreme Court overruled the Patent Court's decision to grant Kordes trademark rights.

Kordes introduced the two breeds in Korea in 1987 but did not move to have the names registered as Korean trademarks until 1997. During this 10-year period, the rose breeds became very popular, accounting for 50% of local cut-rose production by 1997. Once the Patent and Trademark Office had approved Kordes applications for registration, the Korean Florist Association began proceedings before the Intellectual Property Tribunal to have the registrations cancelled on the grounds that the trademarks consist of common names of roses.

The tribunal ruled in favour of the florists but the Patent Court reversed on appeal.

When the matter reached the Supreme Court, the court again found in favour of the florists, overruling the decision of the Patent Court. The Supreme Court said in its ruling that, pursuant to Article 6(1) of the Korean Trademark Law, whether a mark consists of the common name of a good is judged at the time of rendering the registration. By the time of registration, 'Red Sandra' and 'Kardinal' had become common names of the rose breeds in question. The names were not known as marks indicating the origin of the goods and therefore should not be registered as marks.

Yoon Bae Kim, Kims & Lees, Seoul