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(영문) 대법원 2004. 7. 9. 선고 2002후2563 판결

[등록무효(상)][공2004.8.15.(208),1367]

Main Issues

[1] Whether an application for a trademark which is not famous domestically constitutes Article 7(1)4 of the Trademark Act (negative)

[2] The case holding that even if the trademark is used for the designated goods of the cited mark whose name is "glass, subdivisions, etc." and "glass height" as the designated goods of the registered trademark with "glass height, etc." have no economic connection, there is no possibility that consumers might be confused by mistake or confusion about the source of goods, even if the trademark is used for the designated goods

Summary of Judgment

[1] As long as a specific trademark is not well-known in the Republic of Korea, it shall not be deemed that the registered trademark constitutes "a trademark which is likely to disrupt the public order or good customs" under Article 7 (1) 4 of the Trademark Act.

[2] The case holding that "lampering, lampering, pen board, etc., which are the designated goods of the registered trademark, the name of which is "hamp height", do not contain any specific contents in the designated goods of the registered trademark, but against the school material made by the school material so that the lampering or writing can be used in the educational place, it is different in its use since the school material is already used for learning or education purposes as it includes specific contents, and the designated goods of the registered trademark are also different in its use since they are produced and sold by the school aid enterprise, or are directly supplied to the school, private teaching institute, private teaching institute, or private teaching institute, etc., while the school material manufacturer produces and displays and sells or delivers them from the school, private teaching institute, office, etc., consumers of the registered trademark are primarily children, elementary and middle school, and consumers are different from the school, elementary and middle school, and consumers are already already used for learning or education purposes of the registered trademark, even if they are not related to the designated goods of the registered trademark itself, it is not related to the designated goods of the designated goods.

[Reference Provisions]

[1] Article 7 (1) 4 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act

Plaintiff, Appellant

Daesung (Patent Attorney Han-chul, Counsel for the defendant-appellant)

Defendant, Appellee

Defendant (Patent Attorney Park Jong-chul et al., Counsel for the defendant-appellant)

Judgment of the lower court

Patent Court Decision 2002Heo2716 delivered on October 11, 2002

Text

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on Articles 7(1)4 and 7(1)10 of the Trademark Act

A. The lower court: (a) enacted the Plaintiff’s 12.14 and published the Plaintiff’s 10th anniversary of its opening and selling of the 1986-EMM 14; (b) it was widely known that the Plaintiff’s 6th anniversary of its opening and selling of the 1991-EM 166-EM 106-EM 96-EM 14; (c) the Plaintiff’s 196-EM 9-EM 16-EM 96-EM 9-EM 96-EM 16-EM 96-EM 16-EM 9-EM 9-EM 16-EM 14; and (d) the Plaintiff’s 9-EM 9-EM 196-EM 9-EM 196-EMM 193

B. According to the records, it is difficult to view the Plaintiff’s mark as a so-called well-known trademark widely known to the general public, in addition to the related parties to the goods used, and as long as a specific trademark is not well-known in Korea, it cannot be seen as a "trademark which is likely to disturb the public order or good customs" as provided by Article 7(1)4 of the Trademark Act (the Supreme Court precedents regarding the registration and application of a trademark which is not widely known in the ground of final appeal purport that it does not fall under Article 7(1)4 of the Trademark Act, and the purport of the above recognition and determination of the court below is justifiable, and there is no error in the misapprehension of legal principles as to Article 7(1)4 and 10 of the Trademark Act, and there is no error in the misapprehension of legal principles as to facts and misunderstanding of legal principles as to Article 7(1)4 and 7(1)10 of the Trademark Act.

2. As to the ground of appeal on Article 7(1)11 of the Trademark Act

A. The court below determined that the designated goods of the registered trademark of this case are goods belonging to the category 12 category 16 category 12 category 16 category 16 category 12 group 16 category 16 group 16 group 25 group 1 group 16 group 25 group 1 group 2 group 3 group 16 group 2 group 2 group 37 group 37 group 16 group 20 group 37 group 17 group 20 group 20 group 20 group 37 group 20 group 20 group 20 group 20 group 37 group 20 group 20 group 20 group 20 group 20 group 20 group 20 group 37 group 20 group 20 group 20 group 20 group 20 group 20 group 20 group 20 group 20 group 30 group 20 group 20 group 20 group 20 group 20 group 20 group 3 group 220 group 20 group 2.

B. According to the records, the above recognition and determination by the court below is just, and there is no error of law such as misconception of facts, incomplete hearing, or misunderstanding of legal principles concerning the trademark that is likely to mislead consumers as well as the grounds for appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)

심급 사건
-특허법원 2002.10.11.선고 2002허2716