Korean Trademark Distinctiveness: The #1 Reason for Refusal

The single most common refusal ground in Korean trademark practice is lack of distinctiveness under Article 33 of the Trademark Act. The concept itself is simple — distinctiveness is the power of a mark to tell your goods apart from a competitor's — but the actual judgement combines marketplace perception, the relationship to the designated goods, and the inherent nature of the sign. This article walks through the seven Article-33 categories, the naming hierarchy used to avoid them, and the doctrine of acquired distinctiveness.

What "distinctiveness" means

KIPO's Trademark Overview defines distinctiveness as "the function that allows traders or general consumers to recognize whose goods a mark identifies." When that source-identifying function is weak or absent, the mark must be left free for everyone in the same field, so monopoly registration is denied.

Article 33(1) lists seven categories of marks that lack inherent distinctiveness, and Article 33(2) recognizes a doctrine of acquired distinctiveness for some of those categories. Before filing, you want to know which category — if any — your mark falls into, and whether you can build the evidence file for the acquired-distinctiveness exception.

The seven categories under Article 33(1)

Most common refusal — descriptive marks (Item 3)

In practice, Item 3 — descriptive marks drives the bulk of refusals. Words that directly describe the quality, purpose, ingredient, origin, time, or method of production must remain free for all competitors. Korean adjectives like "신선한" (fresh), "빠른" (quick), "천연" (natural), and English equivalents like "Fresh," "Quick," "Pure" all fail this test.

Acquired distinctiveness — Article 33(2)

Even when a mark falls under Items 3 through 7, it can still be registered if prior use has made it widely recognized as identifying a particular party's goods among consumers. Items 1 (generic) and 2 (customary) are excluded — they remain unregistrable no matter how long you have used them.

Evidence of acquired distinctiveness typically combines duration of use, sales figures, advertising spend, market share, and consumer survey data. Five-plus years of continuous use, nationwide advertising, and meaningful market presence are usually the floor — "we have been using it for a while" is not enough.

Naming-strength hierarchy — how to design a strong mark

Distinctiveness strength generally runs coined > arbitrary > suggestive > descriptive > generic. Knowing where your candidate name sits on the spectrum dramatically reduces the refusal risk and broadens the post-grant scope of the registration.

1. Coined: invented words with no dictionary meaning — strongest (e.g., KODAK, EXXON, GOOGLE)
2. Arbitrary: real words used unrelated to the goods (e.g., APPLE for computers, PENGUIN for books)
3. Suggestive: hints at the goods without describing them (e.g., COPPERTONE for sunscreen)
4. Descriptive: directly describes attributes — high refusal risk
5. Generic / common: unregistrable

Frequently asked questions

Can I refile a mark that was already refused?

If the refusal was under Items 3 through 7, you can refile once you have built sufficient evidence of acquired distinctiveness. Refiling the same mark with the same evidence in a short window will likely draw the same refusal — build the file, give it time. Items 1 and 2 cannot be cured at any time.

How are non-Korean words assessed?

If the foreign word is sufficiently familiar to general Korean consumers, it is judged the same as Korean. The English word "Fresh" is widely understood as "신선한," so it is descriptive. Words from Latin or rare classical languages, by contrast, may retain enough novelty to be distinctive.

Are all geographic names refused?

Only well-known geographic names trigger Item 4. Obscure local names can be inherently distinctive, and acquired distinctiveness can carry well-known names too — "Paris Baguette" is a familiar example of a geographic name registered through acquired distinctiveness.