[상표등록무효][공1988.1.1.(815),99]
A. Criteria for determining similarity of trademarks
(b) Degree of description of request for appeal;
A. The similarity of trademarks under the Trademark Act is determined by whether two trademarks used for the same kind of product are likely to cause mistake or confusion as to the origin of the product by observing the appearance, name, and concept objectively, as a whole, and as a whole, the appearance, name, and concept of the trademark is similar. Thus, even if a certain part of the appearance, name, and concept is similar, it cannot be called a similar trademark if it can avoid confusion as to the origin clearly considering the different points.
B. According to the provisions of Article 100(1) of the Patent Act which is applicable mutatis mutandis by Article 51(2) of the Trademark Act, an appellant shall submit to the Korean Intellectual Property Office a written request for an appeal stating the purport of a written request for an appeal. However, in indicating the purport of a written request for an appeal, there is no provision regarding the legal method, so it is sufficient to recognize what purport of the request for an appeal is by the description of the written request for an appeal, and it is sufficient to ensure that it is possible to clearly state what extent the request is to be sought
(a) Article 9(b) of the Trademark Act; Article 51(2) of the Trademark Act; Article 100 of the Patent Act
A. Supreme Court Decision 81Hu47 delivered on December 27, 1983, Supreme Court Decision 85Hu65 delivered on February 11, 1986, Supreme Court Decision 85Hu40,41 delivered on October 28, 1986, Supreme Court Decision 65Da662 delivered on June 15, 1965, Supreme Court Decision 69Da1755 delivered on February 10, 1970
PPP and Patent Attorney Jeong-tae, Counsel for the plaintiff-appellant
Dong Cat and Patent Attorney Lee Dong-young
Korean Intellectual Property Office Decision No. 185 delivered on March 31, 1986, 1984
The appeal is dismissed.
The costs of appeal shall be borne by a claimant.
The grounds of appeal are examined.
1. As to the grounds of appeal Nos. 1 and 2:
According to the reasoning of the original decision, in preparation for the similarity between the trademark which is the trademark of this case and the cited trademark of this case, the original decision first held that, in appearance, the cited trademark is a character trademark composed of two parallels in English and Korean, and it can be easily seen that anyone is different from the cited trademark because it is a character trademark composed of two parallels in Korean only. According to the word indicated in the name, the cited trademark is a three parallels of "new ropo", but the quoted trademark is a five parallels of "new ropo". Although the cited trademark is identical in Sections 1, 2 and 3 and 4 of the cited trademark, it is composed of two parallels, but it is marked in the name of the cited trademark of this case, and it is distinguished in the name of the cited trademark of this case, and it is not necessary to cite the trademark of this case as a new one, "the trademark of this case" and "the trademark of this case, which is no more meaningful than the new one," and as a whole, it is judged that the trademark of this case is a new one, "new".
On the other hand, the similarity of trademarks under the Trademark Act is determined by whether two trademarks used for the same kind of product may cause mistake or confusion as to the origin of the product by objectively, comprehensively, and separately observing their appearance, name, and concept objectively, as a whole. Thus, even if only one part of the external appearance, name, and concept is similar, if it is clearly possible to avoid confusion as to the origin (see, e.g., Supreme Court Decision 85Hu40,41, Oct. 28, 1986; Supreme Court Decision 81Hu47, Dec. 27, 1983; Supreme Court Decision 80Hu61, Dec. 13, 1983; Supreme Court Decision 80Hu61, Dec. 13, 1983; Supreme Court Decision 2009Da8061, Dec. 13, 1983). Accordingly, the decision of original court is justified as a decision rendered in the same purport, and there is no error of law such as misunderstanding of legal principles or omission as alleged.
2. As to the third ground for appeal:
When the respondent of this case (hereinafter referred to as the "appellant") makes a request for a trial on appeal, it is stated that "the original adjudication shall be destroyed," as the purport of the request for a written request for a trial on appeal submitted by the respondent of this case (hereinafter referred to as the "appellant"), and that the trial costs shall be borne by the respondent of this case," and that the purport of the request for a trial is not included in the purport of the request for
However, according to the provisions of Article 100 (1) of the Patent Act which is applicable mutatis mutandis by Article 51 (2) of the Trademark Act, a petitioner for an appeal shall submit to the Korean Intellectual Property Office a written request for an appeal stating the purport of a request for an appeal. However, if the purport of a request for an appeal is not legally prescribed, it is sufficient to recognize the purport of the request for an appeal, and if it is sufficient to the extent that it is possible to recognize the purport of the request by the statement of the request for an appeal, it does not have to clarify what extent the request is to be sought from the purport of the request for an appeal (see, e.g., Supreme Court Decisions 65Da662, Jun. 15, 1965; 69Da1755,1756, Feb. 10, 1970). However, according to the records, the petitioner for an appeal does not state the request for an appeal in front of the written request for an appeal, but the purport of the request is omitted, and therefore, it cannot be said that the request for an appeal is unlawful.
3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee Lee-hee (Presiding Justice)