[2] The case holding that since the applied service mark " " and prior registered service mark " " are not similar, they cannot be deemed to constitute grounds for rejection of registration under Article 7 (1) 7 of the Trademark Act

[2] The case holding that since the appearance of the applied service mark " " and the prior registered service mark " are different, and there are differences in concept and name, both marks are not similar, they cannot be deemed to constitute grounds for rejection of registration under Article 7 (1) 7 of the Trademark Act

2. The costs of the lawsuit are assessed against the defendant.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

A. The plaintiff's applied service mark

(1) Date/ Number of the application: June 28, 2007 / No. 17617

(2) Composition:

(3) Designated service business: Summary restaurant business, simple restaurant business, tourist restaurant business, etc. (the Plaintiff’s applied service mark No. 43, hereinafter referred to as “instant applied service mark”).

(b) Prior registered service marks;

(1) Date of application / Date of registration / Number of renewal / Number of application : May 16, 1997 / January 23, 2008/ No. 468111

(2) Composition:

(c) Designated service business: General restaurant business, simple restaurant business, main restaurant business, and bakeries business (classified of service categories 43); and

(4) Right holder: Kim Sung-tae

C. Details of the instant trial decision

(1) On June 28, 2007, the Plaintiff filed an application for the instant pending service mark. On May 28, 2008, the Korean Intellectual Property Office rendered a decision of refusal on the ground that the instant pending service mark is similar to the prior registered service mark and falls under Article 7(1)7 of the Trademark Act, and thus, it cannot be registered as a service mark.

(2) According to the Plaintiff’s appeal and appeal against the foregoing decision of refusal, the Intellectual Property Trial and Appeal Board tried to dismiss the Plaintiff’s appeal on the same ground as the above decision of refusal.

2. Whether the pending service mark falls under Article 7(1)7 of the Trademark Act

A. Legal doctrine

In the case of a combined trademark comprised of two or more letters or diagrams, if the combination of the constituent parts cannot be deemed natural or a series of indivisible parts, it is allowed to separately extract and prepare for the constituent parts. However, the similarity of trademarks is in principle to observe two trademarks used for the same or similar goods as a whole and to determine their appearance, name and concept by comparing and examining them (see Supreme Court Decision 2001Hu198, Nov. 13, 2001).

B. Whether the mark is similar

The pending service mark of this case is a mark consisting of the word “san”, “spa,” and “spawn” together with the word, and is in line with the figure of the shape of the mountain between “san” and “spawn.” Under the shape of the mountain, the phrase “top restaurant in Gangwon-do” is composed of smaller letters compared to other parts. The pre-registered service mark is a mark consisting of the word “Namn village” and “Namn village.” The appearance of the mark is different, and there is a difference in the concept.

In addition, in the case of the pending service mark of this case, there is a figure in the mountain between the "san" and the "p money," while the part of the "p money" is expressed in small letters compared to the "nsan" and the "Namnam village". However, the part of the figure in the mountain is merely an additional part of the letter, and it is merely a kind of food provided by restaurants, and it is not possible to regard these parts as an integral combination with the remaining parts of the pending service mark of this case. The remaining parts of the service mark of this case except the part of the mountain figure and the "top restaurants" of Gangwon-do are the remaining parts of the "Osan" and the "man" portion are the structure that can be seen as the "nsan village" and the service mark of this case is closely related to these parts, and thus, the pending service mark of this case can be perceived as the "Ounam village" mainly to ordinary consumers or customers.

On the other hand, if the pending service mark of this case is recognized as such to ordinary consumers, etc., it is nothing more than five parts, and it is difficult for ordinary consumers to refer the trademark of this case to the term "marnam village". Thus, it seems that ordinary consumers, etc. can refer the trademark of this case to the term "marnam village", and it does not appear to be separated from the part "marnam village" alone.

Therefore, the pending service mark and the pre-registered service mark of this case are different from their appearance, and their concepts and names are different, so the mark is not similar.

C. Sub-decision

As seen above, since the mark of the applied service mark of this case is not similar to that of the prior registered service mark, it is not similar to that of the prior registered service mark, without any comparison for the designated service business of such prior registered service mark, the applied service mark of this case is not similar to the prior registered service mark, and therefore, it cannot be viewed as a ground for rejection of registration under Article 7 (1) 7 of the

3. Conclusion

If so, the trial decision of this case different conclusion is unlawful, and the plaintiff's claim seeking its revocation is justified, and it is so decided as per Disposition by admitting it.

Judges Noh Tae (Presiding Judge)