[거절사정][공1995.4.1.(989),1474]
(a) whether the trademark “(s)” and “human trademark” are similar;
B. Whether a simple and sealed mark part of the entire trademark should be excluded from the subject of comparison in determining the similarity of the trademark
A. The applied trademark and the pre-registration cited trademark are different in their external appearance, but in their names and concepts, it is difficult to derive a specific name or concept with the diagrams, and therefore, they will be named and conceptualized by their characters. Since the cited trademark has the intention of shape, Costa, and algoriness, and thus, it is not recognizable when considering the designated goods, the essential part of the cited trademark is "ALPHA" and thus, both trademarks are identical in terms of the word, name, and concept of the cited trademark, and thus both trademarks are deemed to be a trademark similar as a whole.
B. Even though a specific part of the trademark cannot be registered as a simple and trace mark only by itself, its essential part cannot be deemed as an essential part of the entire trademark, or it does not need to be excluded from the subject of comparison in determining the similarity of the trademark.
Article 7 (1) 7 of the Trademark Act
Patent Attorney Choi In-hoon, Counsel for defendant-appellant
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Office Decision 93Na987 Dated September 24, 1994
The appeal is dismissed.
The costs of appeal shall be assessed against the applicant.
The grounds of appeal Nos. 1 and 2 of the applicant are examined together.
1. According to the reasoning of the decision of the court below, the court below determined that the original condition rejecting the registration of the original trademark by applying the provisions of Article 7 (1) 7 of the Trademark Act was justified, since both trademarks are identical to the original trademark, since both trademarks are recognized as identical to the original trademark, and the designated goods are identical to those recognized as identical to the original trademark, and both trademarks are deemed as identical goods, so it is difficult to derive a specific name or concept with different shapes, or both trademarks in terms of their names and concepts, and thus, the original condition rejecting the registration of the original trademark by applying the provisions of Article 7 (1) 7 of the Trademark Act is justified.
2. The gist of the grounds of appeal is that the part "ALPHA" among the above trademarks is a simple and trace mark with no distinctive character, and it cannot be an essential part, and even if compared, the two trademarks shall not be compared. The names of letters as figures should be compared, and there is no possibility of misunderstanding or confusion as a whole. However, even if "ALPHA" cannot be registered as a simple and sealed mark, even if it is a simple and sealed mark, it shall not be an essential part of the entire trademark, or it shall not be excluded from the subject of comparison in determining the similarity of trademarks. Since the name is expressed verbally, it shall not be considered in comparison, and even if the two trademarks of this case merely differ in appearance, it is difficult to see that the entire trademark cannot be mistaken or confused with the source of goods, regardless of the similarity of the above names. The judgment of the court below is justifiable and there is no error in the misapprehension of legal principles as otherwise alleged in the grounds of appeal.
3. Therefore, the appeal is dismissed and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jong-chul (Presiding Justice)