[거절사정][공1992.3.1.(915),790]
A. Whether two trademarks are similar in cases where one trademark can think of two or more names, concepts, and ideas, and where one of them is deemed identical or similar to those of another trademark (affirmative);
B. Whether the applied service mark and the cited service mark are similar (affirmative)
C. Whether it can be the standard for determining the similarity between the applied service mark and the cited service mark under the circumstances in which the right to the applied service mark was extinguished upon the expiration of its term of existence and the registration of the cited service mark was accepted during its term of existence (negative)
A. A trademark does not necessarily mean that its name, concept, and each constituent part is not necessarily the same as that of another trademark, but is not an integral combination so far as it is deemed natural even if it is separately observed by dividing and observing each constituent part, may be briefly named, concept, and two or more names or concepts may arise from one trademark; and as such, if it is deemed that two or more names, concepts, and concepts are the same as or similar to those of the other trademark, the two trademarks shall be similar in the end, and such legal principles shall also apply to service marks.
B. The term “application service mark” (forest 1) does not seem to be an indivisible combination to the extent that it is natural in the trade, as it appears that the observation of the two elements of the figure portion and the letter portion is an integral combination to the extent that it is not natural in the trade, so if it is recognized by the portion of “(forest 2)” in the commercial transaction, the cited service mark’s name is identical with that of “(forest 3)” and its concept is different from that of “the quoted service mark, and therefore, if the two service marks are used for the same designated service business, it is likely that ordinary consumers or traders may cause confusion about their source.
C. Even if the registered service mark was already registered by an applicant and its rights were extinguished due to the expiration of its term of existence, and the registration of the cited service mark was accepted during its term of existence, such circumstance cannot be the standard of determining the similarity between the applied service mark and the cited service mark.
(a) B. (c) Article 2(5)7 and Article 9(1)7(c) of the former Trademark Act (amended by Act No. 4,210, Jan. 13, 1990)
A.B. Supreme Court Decision 89Hu1394 delivered on May 8, 1990 (Gong1990, 1261) 90Hu1734 delivered on March 27, 1991 (Gong1991, 1294) / June 28, 1991 (Gong1991, 2043). Supreme Court Decision 89Hu1370 delivered on June 12, 1990 (Gong190, 1472)
Attorney Lee Young-gu et al., Counsel for the defendant-appellant
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Office Decision 90Hun-Ba74 dated June 29, 1991
The appeal is dismissed.
The costs of appeal shall be assessed against the applicant.
We examine the grounds of appeal.
A trademark is not necessarily named and conceptualized by the name of the entire constituent part, but is not an integral combination to such an extent that it is deemed natural in the transaction even if it is separately observed by dividing and observing each constituent part, and the name, title, and concept can be simple by a part of the constituent part, and two or more names or concepts may arise from one trademark. As such, if it is possible to think two or more names, concepts, and concepts from one trademark, if it is deemed that one of them is identical or similar to that of another trademark (see Supreme Court Decision 86Hu149, Oct. 26, 1987; Supreme Court Decision 89Hu1394, May 8, 190). Such legal principles are the same as those of service marks.
According to the reasoning of the original trial decision, the court below held that the original service mark "(g 1)" (which is a combination of diagrams and letters) consists of two elements such as "(g 2)" and "(g 4)", which are the top left side, and that it seems that the separate observation of these two elements is an integral combination to such an extent that it is not natural in the trade, and therefore it is not possible to recognize the original service mark as "(g 2)" or " [g 4]" in today's commercial transaction, which is a simple and rapid practice, and if the original service mark is recognized as "(g 2]", it is identical with the cited service mark [g 3] and the concept is different, and if the two service marks are used for the designated service business, it is not likely to mislead general consumers or traders as to its source, or cause confusion as to its source. In light of the above legal principles, the court below's determination of facts or the judgment of the court below is without merit.
The precedents of party members cited by the theory of theory are inappropriate as precedents of this case, unlike those of this case.
In addition, even if the original service mark was already registered by an applicant and its rights were terminated due to the expiration of the term of existence, and even if the registration of the cited service mark was accepted during the term of existence, the applicant's request for a trial on invalidation of the registration of the cited service mark cannot be the criteria for determining similarity between the original service mark and the cited service mark (see Supreme Court Decision 89Hu1370 delivered on June 12, 1990), and it cannot be said that there is no error of law like the theory of lawsuit in the original service decision. All arguments are without merit.
Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)