B. The purport of Article 9(1)11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) and requirements for constituting a trademark that is likely to deceive consumers under the same Article

B. The purport of Article 9(1)11 of the former Trademark Act that provides that a trademark that is likely to mislead consumers shall not be registered, not to protect the existing trademark, but to protect the general consumers’ reliance on the quality, origin, etc. of goods using a trademark already recognized as a specific person’s trademark by preventing misconception and confusion among consumers, thereby preventing such misconception and confusion, and thus, there is a concern that consumers may deceive consumers. In order to determine that a quoted product or quoted trademark is not necessarily well-known and well-known, but at least, it should be known to the extent that it can be perceived as a specific person’s goods or trademark if it is said to be the goods or trademark in domestic ordinary trade.

The costs of appeal shall be borne by a claimant.

On the first ground for appeal

In a trademark-related case, Article 116 (3) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) which is applicable mutatis mutandis under Article 51 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990; hereinafter the same) and Article 328 of the Civil Procedure Act, where the other party does not dispute the authenticity of a private document, the authenticity of the document shall be recognized (see, e.g., Supreme Court Decision 80Hu52, May 22, 1984; 86Hu612, Jan. 17, 1989). According to the records, although the respondent did not dispute the authenticity of the document submitted by the claimant, the court below rejected the evidence No. 3 prepared by the claimant, evidence No. 4-1-2, and evidence No. 2, etc. after the filing of the trademark application of this case.

However, the purport of Article 9 (1) 11 of the former Trademark Act stipulating that the above trademark may not be registered as a claimant for the purpose of protecting the existing trademark, not to protect the existing trademark, but to protect the public's reliance on the quality, source, etc. of goods using a trademark already recognized as a specific person. Thus, the quoted goods or quoted trademarks are not necessarily well-known or well-known, but at least if they are goods or trademarks in the domestic general trade, they should be widely known to the extent that they can be recognized as goods or trademarks of a specific person (see, e.g., Supreme Court Decision 90Hu649, Dec. 7, 1990; 90Hu311, Nov. 11, 1991; 91Hu592, Nov. 26, 1991; 90Hu2880, Nov. 28, 1992).

On the second ground for appeal

As seen earlier, the fact that the cited trademark cannot be deemed to be a trademark widely known to a domestic user under Article 9(1)11 of the former Trademark Act is not acceptable on the ground of Articles 9(1)9 and 10 of the former Trademark Act, which require a greater recognition.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.