[등록무효(상)][공1999.4.15.(80),672]
[1] Criteria for determining similarity of combined trademarks
[2] Whether the registered trademark is similar in terms of the registered trademark such as the “line + Line,” and the cited trademark DoEIM (affirmative)
[1] Whether a trademark is similar should be determined by whether there is a concern for mistake or confusion as to the origin of a trademark by observing two trademarks used for the same kind of product in terms of appearance, name, and concept in a whole, objective, and apart from the perspective of appearance, name, and concept, etc., and on the basis of a direct perception that ordinary consumers or traders feel with respect to the trademark. The combined trademark consisting of each constituent element of letters, letters, or figures is not necessarily called and conceptualized by the entire constituent part, but can be simply called, conceptualized, and conceptualized by only a part of its constituent part unless the separate observation of each constituent element is made indivisible to the extent that it is deemed natural in the transaction. In addition, if two or more names or concepts can be considered from one trademark, if one of them is deemed identical or similar to another's trademark, the two trademarks are similar.
[2] Among the composition of the registered trademark "gi £« line", the term "line" in the name of the designated goods is cut directly into sing, singing, and so, the essential part of the registered trademark can be deemed to be a combination of "a picture" and "a line" and "a line" and "a line" cannot be deemed to be a combination of "a picture" and "a line" and "a line" as it is an essential part with equal distinctiveness, so the registered trademark can be deemed to be an "a picture or line", and as long as the registered trademark can be abbreviated with "a picture DALIM" and "a line" and "a similar trademark cannot be deemed to be a trademark because it is identical with "a picture DALIM" and "a line" and "a similar concept.
[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act
[1] Supreme Court Decision 96Hu795 delivered on March 11, 1997 (Gong1997Sang, 1108), Supreme Court Decision 96Hu313, 320 delivered on March 25, 1997 (Gong1997Sang, 1231) / [2] Supreme Court Decision 96Hu1170 delivered on March 28, 1997 (Gong197Sang, 1239), Supreme Court Decision 97Hu1238, 1245 delivered on November 14, 197 (Gong197Ha, 3863), Supreme Court Decision 97Hu1863 delivered on April 14, 1998 (Gong198Sang, 1363)
Daegu Fisheries Co., Ltd. (Patent Attorney Cho Chang-sik et al., Counsel for the defendant-appellant)
Dae Forestry Industry Co., Ltd. (Patent Attorney Choi Sung-sung, Counsel for the defendant-appellant)
Patent Court Decision 98Heo7806 delivered on October 15, 1998
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
The similarity of trademarks shall be determined by whether there is a concern for mistake or confusion as to the origin of the goods by observing two trademarks used for the same kind of goods in terms of appearance, name, concept, etc. in general, objective, and apart from the perspective of appearance, name, and concept, and if it is recognized that two or more names or concepts among one trademark are identical or similar to another's trademark (see, e.g., Supreme Court Decisions 9Hu739, Mar. 11, 1997; 9Hu7395, Mar. 31, 1997; 97Hu1397, Jun. 31, 1997).
In light of the records, since the trademark of this case, among the composition of the registered trademark of this case, "line" is sensed to mean the singing, fresh, etc. in relation to livestock products as designated goods, so the essential part of the registered trademark can be deemed to be the "forest" part, and even if the plaintiff acquired the distinctiveness as prescribed in Article 6 (2) of the Trademark Act by advertising the mark as the trademark of this case before the application of the registered trademark of this case, the trademark of this case can not be deemed to be a combination of the "green" part, and as such, it cannot be said that the trademark of this case is natural if separate observation is made, it cannot be said that there is an integral combination to the extent that it is not natural in the trade, and therefore, the trademark of this case is an essential part with equal distinctiveness, so that the trademark of this case can not be determined to be an exclusive trademark, i.e., the trademark of this case and the trademark of this case, i.e., the trademark of this case, which is identical with the trademark of this case.
The court below is justified to determine the registered trademark of this case as similar to the cited trademark, and there is no error of law such as misunderstanding of legal principles or incomplete hearing as to the criteria for determining similarity of trademarks as alleged in the grounds of appeal.
In addition, there is no evidence that the cited trademark is merely a trademark for the purpose of defense without any actual use in relation to the designated goods, and the Supreme Court precedents pointed out in the ground of appeal are inappropriate to be invoked in this case, unlike this case.
The grounds of appeal are without merit.
Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Cho Cho-Un (Presiding Justice)