The above mark is a registered trademark (designated goods: perfume) of Kenzo Société Anonyme (hereinafter "Kenzo"), which is an affiliate of the French conglomerate, Louis Vuitton Group.

The Kenzo trademark contains four (4) elements (i.e., representing the blooming stages of a flower from the bud until full bloom). Kenzo used its trademark on the four (4) sides of the perfume's rectangular box packaging, as shown above.

Amore Pacific, CO., Ltd. ("Amore") filed a cancellation action against the above trademark and argued non-use of the mark by Kenzo's based upon differences between the registered mark and Kenzo's product packaging. The issue is whether such use of the trademark can be deemed identical to the registered trademark.

The Patent Court ruled that even though Kenzo's use was slightly different from the registered mark, (e.g., 4 blooming states of the poppy was in reverse order and the direction of the written word was vertical rather than horizontal), Kenzo's product packaging was recognized as identical to its registered mark to satisfy the actual use requirement.

Importantly, the Court appear to have expanded the "single glance" test. Previously, in order to establish actual use, the trademark registrant had to show that each of the elements of the combined marks was recognizable (or viewable) in a single glance.

For example, the words "FLAVONO" and "FLAVONO in its Korean transliteration" was used on different sides of a gum's packaging. However, the Patent Court held this to be proper because consumers could view the entire mark in a single glance. Similarly, in a case involving a signboard for a custom tailor shop, the registered trademark was "BURTON and its Korean transliteration." However, the actual use consisted of "BURTON in its Korean transliteration" on a protruding signboard, while "BURTON" was used on a separate signboard in front of the store. The Court accepted the registrants use since the elements of the mark were sufficiently close to each other in distance and easily recognizable in one glance, depending on the consumer's viewing angle.

Compared to these previous decisions, the current Kenzo decision recognizes a substantially wider scope of identicalness. Even though consumers cannot see all the elements of the trademark from the package in a single glance, the Kenzo Court considered the package's disassembled form in determining identicalness. We expect the Patent Court's more liberal standard for identicalness will create greater flexibility for trademark owners.

At this time, the opposing party has filed an appeal against the Patent Court decision, and the case is currently pending before the Supreme Court.