[거절사정][공1991.1.15.(888),234]
Whether the designated goods of the cited trademark, such as general-use computers, information care equipment, and radio communication equipment belonging to Chapter 39, are similar to those of the cited trademark such as the designated goods of the applied trademark, automatic control machinery, apparatus, etc. (negative)
Although general computers, information care equipment, radio communication equipment, etc., which are the designated goods of the main trademark, belong to category 39 in the product classification under the Enforcement Rule of each Trademark Act, each of the above goods can not be deemed to be identical or similar goods in light of the quality, use, shape, transaction circumstances, etc. of each of the above goods.
Article 9(1)7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4504, Dec. 28, 1982) (Law No. 1983,425) and 86Hu152, Aug. 25, 1987 (Gong1987,1526) (Gong1990,1801)
디지탈 이큅먼트 코오포레이션 소송대리인 법무법인 중앙국제법률특허사무소 담당변호사 이병호
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Office Decision 89Na518 dated April 30, 1990
The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.
We examine the grounds of appeal.
According to Article 9 (1) 7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), a trademark identical or similar to another person's registered trademark based on an earlier application and used for goods identical or similar to the designated goods of the registered trademark shall not be registered. Thus, even a trademark identical or similar to a registered trademark based on an earlier application is not used for goods identical or similar to the designated goods of the registered trademark, if it is not used for goods identical or similar to the designated goods of the registered trademark. Meanwhile, the registered goods are identical or similar to the designated goods according to the transaction norms in consideration of their quality, use, shape, transaction circumstances, etc., so it shall be determined according to the transaction norms. Thus, it cannot be concluded that the goods of the same or similar kind are goods belonging to the same kind as the goods of the attached Table among the goods classification under the Enforcement Rules of the Trademark Act (see Supreme Court Decisions 81Hu41, Dec. 28, 1982; 86Hu152, Aug. 25, 190).
The original adjudication is based on the premise that “ ” and “Dgal S-pak,” which are the main trademark, are similar to the designated goods of the original trademark. Among the general computers, information care equipment, radio communication equipment, etc., which are the designated goods of the original trademark, and the subsidiary automatic control machinery and equipment, among the designated goods of the cited trademark, are identical or similar to those of the seller or trader, so if the original trademark is used for the designated goods, general consumers are likely to mislead or confuse the cited trademark and the source of the goods. Accordingly, the application of this case maintains the initial deliberation measures that have been rejected pursuant to Article 9(1)7 of the above Trademark Act.
However, according to the records, there is no evidence to acknowledge that each seller or trader is identical or similar to each of the designated goods of each of the above designated goods of the original trademark, even though the designated goods of the original trademark belong to Class 39 in the classification of goods under the Enforcement Rules of the Trademark Act, in light of the quality, use, shape and transaction circumstances of each of the above goods, each of the above goods cannot be deemed as identical or similar goods.
Therefore, the original trial decision is reasonable in that each of the designated goods in the original trademark and the cited trademark constitutes "the same or similar goods" as provided by Article 9 (1) 7 of the above Trademark Act without proper deliberation, and it is recognized facts without evidence, or it is found to have committed an unlawful act that affected the conclusion of the trial decision by misunderstanding the legal principles as to the above trademark law. Therefore, it is reasonable to discuss this issue.
Therefore, the original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Lee Chang-chul (Presiding Justice)