2. The costs of lawsuit shall be borne by the Plaintiff.

A. The applied trademark of this case

(1) Date/application number: December 12, 2006/40-2006- (application number omitted)

(2) Composition:

(c) Designated goods: as shown in the attached Form;

B. First Used Trademark

(1) Composition:

(b) Goods using: Clock;

(c) Users: Good visual system (hereinafter referred to as “Good visual system”);

C. Details of the instant trial decision

On March 208, 2008, the Korean Intellectual Property Office examiner rejected the Plaintiff’s application for trademark registration. The Korean Intellectual Property Trial and Appeal Board rejected the Plaintiff’s application for trademark registration on the ground that it constitutes Article 7(1)11 of the Trademark Act, and the Korean Intellectual Property Trial and Appeal Board rejected the Plaintiff’s application for trademark registration on July 22, 2010, where the trademark of this case is used for “visual and visual parts” among the designated goods, the trademark of this case was used for the “visual and visual parts,” and the trademark of this case on July 22, 2010.

[Ground of recognition] Evidence Nos. 1, Eul evidence Nos. 1 through 4, the purport of the whole pleadings

2. Summary of the grounds for illegality of the trial decision of the plaintiff's assertion

On July 6, 2001, the Plaintiff filed an application for the trademark on December 17, 2002 after being registered on the product category No. 14 (hereinafter “Plaintiff’s registered trademark”). On June 30, 2003, the Plaintiff concluded a trademark use contract on the Plaintiff’s registered trademark between good visibility and good visibility, and on the contract, on December 30, 2002, the date of the contract including the time for discussion of the contract was entered into, and thereafter, the Plaintiff produced and sold the visibility attached to the above trademark as a licensee of the Plaintiff’s registered trademark, and the Plaintiff terminated the contract on April 21, 2005 due to nonperformance of the good visual contract terms. However, the Plaintiff’s notification of termination of the contract was invalid, and continued to sell the trademark attached to the Plaintiff’s registered trademark on July 28, 2008, and it should not be deemed that the contract termination was legitimate from 30 days prior to the contract termination of the contract between the Plaintiff and the Plaintiff’s right to use the trademark.

Before entering into a contract for the use of the trademark with the Plaintiff, there is a good visibility prior to the conclusion of the contract with the Plaintiff, but the advertisement activity of the trademark was extremely weak, and most of its use behavior constitutes “illegal use” under Article 73(1)2 of the Trademark Act. Thus, the use of the trademark at good visibility at that time cannot be recognized as lawful use of the trademark.

Therefore, despite the fact that the trademark applied for registration does not fall under Article 7 (1) 11 of the Trademark Act, the decision of this case is unlawful.

3. Whether it falls under Article 7 (1) 11 of the Trademark Act

A. Criteria for judgment

In order to constitute a trademark that is likely to deceive the consumers as stipulated in Article 7 (1) 11 of the Trademark Act, the comparable trademark or its goods are not necessarily well-known, but at least it should be known to the extent that it can be perceived as a trademark or goods of a specific person if the trademark or goods are used in domestic general trade. In such a case, if a trademark identical or similar to the comparable trademark is used on the designated goods identical or similar to the above goods for which the goods are used, it may be said that there may be concerns for ordinary consumers to mislead or confuse the origin of the goods under the above provision. The base point of the determination is when the trademark registration ruling is made on the application for trademark registration or when the decision on whether to grant trademark registration is made on the application for trademark registration (see Supreme Court Decision 9Hu2655 delivered on September 28, 201).

B. Whether the mark is similar

The trademark " " of this case" is a mark containing the English language "SODA", and the pre-use trademark " "" is also a trademark containing the English language "SODA." The two marks are identical or similar to all of their appearance, name, and concept.

C. Whether the goods are similar

Among the designated goods of the applied trademark in the instant case, visual parts such as “sprinkling, electronic visual system, etc.” and “sprinkling, visual letters, visual clock, etc.” are goods identical or similar to the visibility, which is goods using the pre-use trademark.

D. Whether the pre-use trademark is known

(1) Facts of recognition

The following facts may be acknowledged according to the previous purport of the evidence of 8, 13, 15, 18, 20 through 26, 28 through 52, and 54 (including each number) and the pleading:

(A) The good visual view was established on June 15, 1997, and from July 1997, produced and sold the visibility attached with the trademark containing “,” “,” and “MISDA,” and sold at nationwide slot department, etc. (Evidence B, No. 8 and 13), from early 2000 to early 200, produced and sold the visibility attached with the trademark attached with the pre-use trademark or the pre-use trademark within the scope identical with the pre-use trademark (hereinafter “SSA”).

(B) The producer participated in the international exhibition from November 1, 1998 to November 1, 1999 and participated in the Hong Kong City EXPO to exhibit and sell the visibility with a trademark of SODA while displaying and selling the visibility with a trademark of SODA. From May 200 to December 2003, the Hong Kong City EXPO and China moved in the 12 major Internet shopping mall, located in the 12 major Internet shopping mall, constructed a good visual shopping mall (No. 8) on June 2004, and on June 2004 and 2005, the Hong Kong City EXPO marked SODA trademark on its own (No. 15-2).

(C) The visibility of “SODA” produced by good visibility was selected by the Minister of Commerce, Industry and Energy as an excellent industrial design product in 2002 and 2003 (Evidence 54-1, 2).

(D) On November 2004, the visibility of “SODA” in good visibility was sold at large discount stores, such as scambrate, e-mail, home fluor, carving, carving, cryp, scamtin, and New Coina, and at EXE, etc. (No. 8).

(E) From March 2005, good visibility was advertised 4 to 4: (a) ; (b) 1; (c) 1; (d) 18; (d) 1; (e) 3; (d) 4; (e) 1; (e) 3; (d) 4; (e) 1; (e) 1; (e) 4; (e) 1; (e) 20; (e) 1; (e) 4; (e) 1; (e) 4; (e) 1; (f) 3; (f) 4; (f) 1; (f) 1; (f) 1; (f) 1; (f) 1; (f) 1; (f) 1; (f) 1; (f) 1; (f) 18; (f) 1; (f) 200; (f) 3; (f) 3; (f) 1; (f) 3; 9; (f) 3) 3) 1; 9; 3. 1; 1; 3. 3. 1; 1; 3. 3. 1; 3. 3. 3. 1;

(f) On February 201, 201, 200 WAO 1: 30 Doz. 5 Doz. 5 Doz. 6 Doz. 2 Doz. 2 Doz. 2 Doz. 4 Doz. Doz. 7 Doz. 10 Doz. 20 Doz. 20 Doz. 5 Doz. 20 Doz. 20 Doz. 20 Doz. 5 Doz. 20 Doz. 20 Doz. 20 Doz. 20 Doz. 30 Gaz. 1 m. 10 m. 1 m. . 20 m. m. 3 m. m. k. k. m. m. 20 m. m. 1 m. m. m. 3 m. m. m. 5 m. m. m. m. 2 m. m.

(2) Determination

(A) As seen in the above facts, the pre-use trademark began to be used for a long time, the pre-use trademark was sold at a major national store and Internet shopping mall, the visibility with the pre-use trademark was advertised several times in radio, subway, newspapers, magazines, etc., the good visibility was displayed and sold by participating in a series of overseas exhibitions, and the pre-use trademark was attached to the pre-use trademark. The visibility with the pre-use trademark was designated as an excellent industrial design product over two occasions, the “SODA” was selected as the first step in domestic fashion, and the main consumers of the pre-use trademark were young people who have a strong power to have a sense of being sensitive to the trademark and prevail, at the time of the decision on whether to permit the trademark registration of the trademark of this case, the pre-use trademark was known to the extent that it can be perceived as a mark or a trademark of a specific person if it is a mark or a product at least to the domestic consumers or traders at the time of the decision on whether to grant the trademark registration of the trademark of this case.

(B) As to this, the Plaintiff asserted that the use of a good visual trademark from December 17, 2002, the date of concluding a contract between the Plaintiff and the Plaintiff, from March 26, 2009, to March 26, 2009, should be deemed the Plaintiff’s use of the trademark. However, even if another person used the trademark with the permission of the trademark right holder, the use of the other person’s trademark cannot be deemed the use of the comparative trademark in Article 7(1)11 of the Trademark Act. Although the comparative trademark is known as a specific person, it does not interfere with the application of Article 7(1)11 of the Trademark Act, which is a provision for protecting general consumers even if the trademark right holder is not a specific person, and it is not known that the other person’s trademark is recognizable as a trademark to the extent that it becomes recognizable as the trademark holder’s trademark (see Supreme Court Decision 9Hu871, Dec. 14, 2001). Thus, the Plaintiff’s assertion that it is not acceptable for the above period.

(C) The Plaintiff asserts to the effect that the use of a good visibility prior to the conclusion of a trademark use contract with the Plaintiff is not an "illegal use." However, the purport of Article 7 (1) 11 of the Trademark Act is not to protect the existing trademark, but to prevent mistake or confusion among general consumers as to the source of goods, etc. using a trademark already recognized as a specific person's trademark, and to protect the trust thereof. Matters concerning the existing trademark or its products are known to a certain extent in domestic ordinary trade, etc. refer to an objective condition that should be recognized based on the transaction's situation. Even if the existing trademark is actually protected as a result of the application of the above provision, it is nothing more than indirect and anti-private effects following the protection of general consumers' interest, and even if the previous trademark user knowingly used the trademark identical or similar to the previous trademark with the previous trademark, it cannot be excluded from the application of the above provision (see, e.g., Supreme Court Decision 201Hu3814, Apr. 1, 2001).

E. Sub-committee

Therefore, at the time of the decision on whether to grant trademark registration of the applied trademark of this case, the pre-use trademark of this case is known to the extent that it can be recognized as a specific person's mark or trademark, and the trademark of this case is similar to the pre-use trademark and the trademark of this case is identical or similar to the goods used in the pre-use trademark, and where the applied trademark of this case is used for the designated goods, the trademark of this case constitutes a trademark of this case related to the designated goods of this case as the trademark of this case falls under Article 7 (1) 11 of the Trademark Act because general consumers or transaction parties are likely to mislead or confuse that it is used by good visibility that is the pre-use trademark of this case, and thus, the trademark of this case should be rejected. However, even if there are grounds for refusal of registration only for the designated goods of the applied trademark of this case, the registration of the designated goods of this case should be rejected in whole (see Supreme Court Decision 2004Hu2109, Mar. 10, 2006).

4. Conclusion

Therefore, the trial decision of this case is legitimate in its conclusion, and the plaintiff's claim seeking revocation is without merit, and it is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Jae-chul (Presiding Judge)