[거절사정][공1993.2.15.(938),613]
(a) Whether the applied trademark “DOWX MATHN” is the designated goods of Emerion exchange earnings, catalysts, smoke agents, leisure agents, and the food preservation agents, which are the designated goods of the cited trademark “”, are the same or similar goods (affirmative)
B. In a case where two or more names can be considered in one trademark, whether the two trademarks should be interpreted as similar to those of another trademark (affirmative)
C. Whether the applied trademark “DOWX MATRAHON” and the cited trademark “a similar” (affirmative)
A. The designated goods of the applied trademark “DOWX MAMAHN” are ion exchange balance, catalysts, fluorants, inn, and domination. The cited trademark “designated goods” are chemicals belonging to Class 10 of the product classification, Group 1 of the product group, and Item 4 of the product list, and since both designated goods are those classified under the product classification, it is not easy for ordinary consumers to easily distinguish their quality and shape. Both designated goods are chemicals that are used similar to food and are traded in the same chemical medicine, pharmacy, etc. with the same manufacturer through the same distribution process. In light of the situation of the same transaction, both designated goods are identical or similar.
B. The trademark should be subject to the determination as to whether the whole constituent part is similar, but it is not always a name or concept under the name of the entire constituent part, but it is not always recognized that the separate observation of each constituent part is inseparably indivisible to the extent that it is natural in the transaction. According to the time, a trademark can be simply a name, concept, and two or more names or concepts among the constituent parts can occur, and where two or more names or concepts can be considered from one trademark, if one of them is deemed similar to that of another trademark, the two trademarks should be interpreted as similar.
(c) The term “DWEX” and “MATRAHON” composed of two separate words that can be separated from the overall observation of the applied trademark “DWX MAHN” and “MAWEX” are difficult to view that the part “DOWX” can only be perceived as simple fishing, and it cannot be seen that the part “DOWX” is made by DOWS Co., Ltd., so the above two parts of the applied trademark can be perceived as an essential part with an equal distinctive character among the general public. In addition, “MARATHN” can be seen as an essential part of the applied trademark, but it cannot be seen as an obvious geographical name as a foreign geographical name, and thus, it cannot be seen as an essential part of the trademark with distinctive character. Thus, the applied trademark can be seen as a “Mara” simply because it is an essential part of the applied trademark.
(a) B. Article 9(1)7(c) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990); Article 8(1)4 of the same Act
A. Supreme Court Decision 86Hu132 delivered on February 24, 1987 (Gong1987,541) 88Hu80 delivered on March 28, 1989 (Gong1991,1294) 90Hu2010 delivered on June 28, 1991 (Gong1990,2043) 91Hu1076 delivered on December 27, 1991 (Gong192,790)
C. C. C. C. C. C. C. kn. et al., Counsel for the plaintiff-appellant
The Commissioner of the Korean Intellectual Property Office
The appellant of the Korean Intellectual Property Office (Korean Intellectual Property Office) Ruling 91Na300 Dated August 19, 192
The appeal is dismissed.
The costs of appeal shall be assessed against the applicant.
1. We examine the grounds of appeal No. 1 by the applicant’s attorney.
However, according to the records, the designated goods of the original trademark shall be determined in light of the quality, use, shape, circumstances of transaction, etc. of the same kind of food and chemical substance, etc., and the designated goods of the cited trademark shall be classified into the same kind of food and the quality or shape of the goods shall not be easily distinguished because they are classified for the convenience of trademark registration (see, e.g., Supreme Court Decision 88Hu80, Mar. 28, 1989). However, in light of the records, since the designated goods of the cited trademark are chemicals belonging to category 10, category 1, group 1, item 4, item 4, item 4, item 1, item 1, item 1, item 1, item 1, item 2, item 2, item 2, item 2, item 1, item 2, item 2, item 1, item 1, item 1, item 1, item 1, item 1, item 1, item 2, and item 3, item 2, item 2, or 3.
2. We examine the grounds of appeal Nos. 2 and 3 by the applicant’s attorney.
A trademark shall be subject to determination as to whether or not the whole component of the trademark is similar. However, a trademark that does not always mean that, at all times, it is not a name or concept by the name of the entire component, but a trademark that is not recognized as being indivisible to the extent that it is deemed natural in the transaction to separate and observe each component is not an integral part of the constituent component, can be briefly named, concept, and the fact that at least two names or concepts among the constituent parts may arise from one trademark can be known in accordance with the empirical rule. In this case, where two or more names or concepts may be considered from one trademark, if one of them is deemed similar to that of another trademark, the two trademarks shall be interpreted as similar (see, e.g., Supreme Court Decisions 83Hu67, Nov. 13, 1984; 91Hu1076, Dec. 27, 1991).
This part of the original trademark “DWEX” and “MATRAHON” consisting of two separate words that can be separated from the overall observation of the DOWX MAHN. Since it is difficult to see that the part “DOWX” is merely a simple fishing and it can not be perceived as a transplant that is made by the DOWE Co., Ltd., the two parts of the original trademark are recognized as an essential part with an equal distinctive character among the general public. In addition, “MARATHN” can be seen as an essential part of the original trademark that is recognizable as a distinctive character among the general public. However, it cannot be seen as an obvious geographical name as a foreign geographical name, and thus, it cannot be seen as an essential part of the original trademark that has distinctive character. Therefore, this part of the original trademark can not be seen as a “Man” simply because it does not fall under the part of the original trademark with a distinctive character.
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing applicant. It is so decided as per Disposition by the assent of all participating Justices.