[거절결정(상)] 확정[각공2007.5.10.(45),1068]
Whether the applied trademark “” is similar to the pre-registered trademark “” (affirmative)
The applied trademark “” can be referred as a whole to “balna”, and it can be interpreted only to the extent that it is referred to as “balna,” which is a relatively highly distinctive part, or that it is referred to as “the world or the collection thereof,” and it constitutes a similar trademark that is likely to cause misconception and confusion as to the source of goods if it is used for designated goods, such as a mother, child, horse, lock, and body uniform, etc., as well as a similar trademark that is referred to as “balna,” which is referred to as “balna,” and thus, may be referred to as “balna,” and thus, may be used for designated goods
Article 7 (1) 7 of the Trademark Act
Plaintiff (Patent Attorney Kim Chang-hoon, Counsel for plaintiff-appellant)
The Commissioner of the Korean Intellectual Property Office
February 28, 2007
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
The decision made by the Intellectual Property Tribunal on November 30, 2006 on the case No. 2006 Won4906 is revoked.
1. Basic facts
【Ground for Recognition: Facts without dispute】
(a) Details of the trial decision;
The Korean Intellectual Property Office filed a decision of rejection on the ground that the trademark of this case under Paragraph (b) below is similar to the prior registered trademark of this case under Paragraph (c) and the title under Paragraph (1) Item 7 of Article 7 of the Trademark Act. The Korean Intellectual Property Tribunal also rendered a decision of rejection on the ground that the plaintiff's appeal against the above decision of rejection was dismissed for the same reason.
B. The applied trademark of this case
(1) Composition:
(2) Date/application number: April 29, 2005/ 2005-19288
(c) Designated goods: Materns, horses, divings, babs, babs, bacons, pac, etc. (Classification of Goods No. 25);
(c) Preregistered trademark;
(1) Composition:
(2) Date of application/registration date/registration number: April 4, 2002/ September 3, 2003/ No. 558370
(c) Designated goods: Materns, horses, divings, babs, babs, bacons, pac, etc. (Classification of Goods No. 25);
2. Whether the trademark of this case and the prior registered trademark are similar
(a) Legal doctrine;
The similarity of trademarks shall be determined by whether there is a concern for mistake or confusion as to the origin of the goods by observing the appearance, name, and concept of two trademarks in an objective, overall, and separately, and based on a direct perception that ordinary consumers or traders feel with respect to the trademark. However, in the case of a combined trademark in which each constituent element of letters, letters, or figures is combined, it is not merely a name, concept, but a separate observation of each constituent element is not an integral combination to a degree that it is deemed natural not to be natural in the trade. In addition, in a case where two or more names or concepts can be considered from one trademark, if it is deemed that one of them is identical or similar to that of another trademark (see, e.g., Supreme Court Decision 2004Hu253, Nov. 25, 2005).
(b) preparation for both trademarks;
[Grounds for Recognition: Evidence Nos. 1 through 11, Evidence Nos. 1 through 5 (including paper numbers), empirical rule, and purport of whole pleadings]
Examining whether the pending trademark is similar to the pre-registered trademark in light of the aforementioned legal principles, first of all, the instant pending trademark and pre-registered trademark are letters written trademarks, each of which is different from each other, and all of which consists of letters and phrases other than the first text, and the overall appearance is different.
However, examining the similarity of name and concept, the trademark in this case is called "Mana," "Mana," and in the case of "Mana," the trademark in this case is called "Mana," the term is widely used as a virtual space or place (..... world or its collection) and lacks distinctiveness. Thus, the trademark in this case can be collectively called "Mana," and as a whole, the trademark in this case can be interpreted as "Mana," a part which has relatively strong distinctiveness by ordinary consumers who tend to be named as "Mana," or can only be interpreted as "Mana," a part which is a part which has relatively strong distinctiveness by means of "Mana," "Mana or its collection."
Thus, when both trademarks are used in the name, language, locking, and body clothes, general consumers or traders can directly see their names and concepts as identical or similar to each other, and may cause misconceptions and confusions about the source of goods due to the same or similar nature of their names and concepts.
(c) Conclusion
Therefore, the applied trademark of this case and the pre-registered trademark of this case fall under a similar trademark which may cause mistake or confusion as to the origin of goods in trade due to the similarity of name, concept, although the appearance of the trademark differs partly from that of the overall observation, and thus, the applied trademark of this case cannot be registered under Article 7(1)7 of the Trademark Act.
3. Conclusion
Therefore, the decision of this case is legitimate, and the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.
Judges Lee Ki-taik (Presiding Justice)