[거절사정][공1992.2.15.(914),692]
Whether the applied trademark and the cited trademark “TOMY” are similar (affirmative)
[Patent] Although there are differences in appearance in comparison with the cited trademark “TMY” in terms of the cited trademark, the above figure is perceived as a symbolic city with the name of “TOMY” rather than directly putting a specific concept into consideration, and the term “LITE” has the purport of “TOMY” is nothing more than planting “TOMY”. Thus, the above two trademarks are similar in terms of name, concept, and thus, if two trademarks are used for the same kind of product, they are likely to cause mistake and confusion as ordinary consumers.
Article 7 (1) 7 of the Trademark Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4548, Apr. 26, 1991) (Law No. 1990, Jan. 1510) (Law No. 1483, Apr. 26, 1991)
Patent Attorney Barunpan-si, Counsel for the defendant-appellant
The Commissioner of the Korean Intellectual Property Office
KIPO 1, 1991 Decision 90Na890 dated July 31, 199
The appeal is dismissed.
The costs of appeal shall be borne by a claimant.
The grounds of appeal are examined.
Whether or not a trademark is similar to one another used in the same or similar goods shall be determined by whether there is a possibility of mistake or confusion between the goods in trade by objectively, comprehensively, and separately observing the external appearance, name, and concept, etc. of the trademark, and even if there are different parts between the trademarks, it shall be deemed similar trademarks in cases where it is easy to confuse them with similar names or concepts. According to the original decision, the court below determined that the trademark in this case [application 1] differs from the appearance of the fact that there is no figure in the cited trademark when compared with [personal trademark 2], while the above figure is perceived as a symbolic city of the animal with the name “TOMY” rather than directly detecting a specific concept, and the term “LITE” is merely an “TOMY” type, and the above two trademarks can not be seen as a "TOMY" type, and therefore, if there is no possibility of confusion between the two trademarks, it shall be deemed that there is no error in the misapprehension of legal principles as to the origin of the trademark in light of the above concept of similarity.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-ju (Presiding Justice)