[거절사정][공1992.6.15.(922),1726]
A. Criteria for determining similarity of trademarks
B. Whether the applied trademark is similar to the prior-registered trademark 1, the prior-registered trademark 2, and the prior-registered trademark 3 (affirmative)
A. Whether a trademark is similar should be determined depending on whether the appearance, name, and concept of two trademarks used in the same or similar goods are objectively, overall, and separately observed, and whether there is a possibility of misunderstanding or confusion between the goods in the transaction. Even if there are different parts among the trademarks, if the appearance, name, or concept of the trademark is similar to those of the designated goods in the transaction of the designated goods, and it is easy for general consumers or traders to confuse them with those of the designated goods because their appearance, name, or concept are similar.
(b) The applied trademark is recognized as having the visual meaning of white, as in the same manner as the prior-registered trademark 1, prior-registered trademark 2, and prior-registered trademark 3, and its concept is identical, similar, and if used in the same product, it is likely to cause mistake and confusion of the source of the product.
Article 9(1)7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)
A. Supreme Court Decision 86Hu132 delivered on February 24, 1987 (Gong1987,541) 90Hu1093 delivered on March 27, 1991 (Gong1991,128) 91Hu608 delivered on September 24, 1991 (Gong191,2624)
Patent Attorney Lee Byung-ho et al., Counsel for the defendant-appellant-appellee and one other, Counsel for the plaintiff-appellant-appellee)
The Commissioner of the Korean Intellectual Property Office
The appellate trial court Decision 90Na1232 delivered on October 29, 1991
The appeal is dismissed.
The costs of appeal shall be assessed against the applicant.
We examine the grounds of appeal.
The similarity of trademarks shall be determined based on whether the appearance, name, and concept, etc. of two trademarks used in the same or similar goods are objectively, overall, and separately observed, and whether there is a possibility of misunderstanding or confusion between the goods in trade. Even if there are different parts among the trademarks, if the appearance, name, or concept of the trademark is similar to those of the designated goods in the transaction of the designated goods, and it is easy for ordinary consumers or traders to confuse with those of the designated goods because the appearance, name, or concept is similar to those of the trademark (see Supreme Court Decisions 86Hu132, Feb. 24, 1987; 91Hu608, Sept. 24, 1991).
According to the reasoning of the original decision, the court below determined that the designated goods, which are the main trademark, are five items, such as ice cream in the category No. 3 of the product classification, and the prior-registered trademark No. 1 is the item of the product classification No. 3 of the product classification No. 17 of the prior-registered trademark No. 3 of the product classification; the prior-registered trademark No. 2 of the prior-registered trademark No. 3 of the product classification is the item of the product classification No. 10 of the product classification No. 3 of the product classification; and the prior-registered trademark No. 3 of the prior-registered trademark provides that the prior-registered trademark No. 4210 of the product classification No. 7 of the product classification No. 9 of the previous Trademark Act (amended by Act No. 4210 of Jan. 13, 190).
In light of the records, since both the original trademark and the cited trademark are recognized as having the visual meaning in white, the judgment of the court below to the same purport is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles as to the similarity of trademarks as pointed out.
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)