[거절사정(상)][공2000.4.1.(103),702]
[1] Criteria for determining similarity of trademarks
[2] Whether the trademark "ADRNA" and "ADRA" are similar to the trademark (affirmative)
[1] Whether a trademark is similar shall be determined by whether there is a possibility of misconception or confusion as to the origin of goods in trade, on the basis of an objective, overall, and comparative observation of the appearance, name, and concept of two trademarks used for the same kind of goods, and on the basis of a direct perception that ordinary consumers or traders feel about the trademark. Even if one of the external appearance, name, and concept is similar, if it is possible to avoid confusion as to the origin clearly, the trademark cannot be deemed similar if it can avoid confusion as a whole, but if it is easy for ordinary consumers to mistake or confuse because the name or concept is similar even if one of the different parts is similar, it shall be viewed as a similar trademark.
[2] In comparison with the applied trademark "ADRNA" and the cited trademark "ADRA + ADRA", both trademarks shall be named below the above in terms of the appearance, such as whether the trademark applied in the name is written together or not, and the trademark applied in the name shall be named as "Aria" or "Aria", and the cited trademark shall be named as "Aria", and if the trademark applied in the name is named as "Aria", both trademarks shall be the same as the first three degrees, which are strongly recognized, and the fourth Sections of the applied trademark shall be very weak, so both trademarks are extremely similar in terms of their overall names.
[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act
[1] [2] Supreme Court Decision 97Hu2026 delivered on May 2, 1998 (Gong1998Ha, 1766), Supreme Court Decision 97Hu2019 delivered on October 23, 1998 (Gong1998Ha, 2780) / [1] Supreme Court Decision 98Hu157 delivered on June 11, 1999 (Gong199Ha, 1417), Supreme Court Decision 98Hu2382 delivered on July 23, 199 (Gong199Ha, 1787) / [2] Supreme Court Decision 95Hu439 delivered on September 26, 195 (Gong195Ha, 3535) / [195Ha, 3535] Supreme Court Decision 209Hu30939 delivered on September 29, 2005
New La Industry Co., Ltd. (Patent Attorney Kimdo-le et al., Counsel for the defendant-appellant)
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Trial Office Decision 96Na2614 dated September 30, 1997
The appeal is dismissed. The costs of appeal are assessed against the applicant.
We examine the grounds of appeal.
The similarity of trademarks shall be determined by whether there is a concern that ordinary consumers or traders may mislead or confuse the origin of goods in trade by observing the appearance, name, and concept of two trademarks used for the same kind of goods objectively, comprehensively, in a separate and separate manner, based on the direct perception that ordinary consumers or traders feel the trademark. Even if one of the appearance, name, and concept is similar, if it is possible to avoid confusion of the origin clearly as a whole, it shall not be deemed a similar trademark, but if it is easy for ordinary consumers to mislead or confuse the origin because the name, name, and concept are similar even in different parts, it shall be deemed a similar trademark (see, e.g., Supreme Court Decisions 95Hu439, Sept. 26, 1995; 97Hu2026, May 22, 1998).
The court below held that the trademark " ARINA (application number omitted)," "(hereinafter referred to as a "original trademark") of this case
ARIA
C) Preparation for the pre-registered trademark "(registration number omitted; hereinafter referred to as "human trademark")"
Italy
The two trademarks shall be named as "Aria", or "Aria", or "Aria", in the name of the original trademark, due to the existence or difference in the letter arrangement, etc. in the appearance of the trademark, and the cited trademark shall be named as "Aria". If the original trademark is named as "Aria", the two trademarks shall be the same as the first three trademarks most strongly recognized, and the fourth one of the original trademarks shall be weak, and the two trademarks shall be extremely similar in terms of their overall name and thus, if both trademarks are used in the same or similar designated goods, it may cause misconception or confusion in the source of goods. Therefore, in light of the records and legal principles as seen earlier, the decision of the court below that rejected registration of the original trademark pursuant to Article 7 (1) 7 of the Trademark Act is justifiable, and there is no error in the misapprehension of legal principles or in the misapprehension of legal principles as to the similarity of the trademark, as otherwise alleged in the ground of appeal, and there is no error in the misapprehension of legal principles as to this case.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-sik (Presiding Justice)