[거절사정(상)][공1997.10.1.(43),2898]
[1] The meaning of a trademark whose quality is erroneous under Article 7 (1) 11 of the Trademark Act and the standard for its determination
[2] The case holding that the applied trademark "PARS SPS CLUB" is not a quality misleading trademark
[1] The trademark that is likely to mislead consumers as to the quality of goods under Article 7 (1) 11 of the Trademark Act refers to the trademark whose composition itself has the nature different from that of the designated goods originally owned, and which is likely to mislead consumers as to that of the designated goods. Whether there is a concern that a trademark might mislead consumers as to its quality should be determined in accordance with the trade norms.
[2] The case holding that insofar as the Paris sports club, which is the name of the PARS SPS CLB, is a virtual sports club that does not actually exist, as well as the meaning of the Paris, which is the geographical name as the center of women's fashion, has not been particularly emphasized from its name, it cannot be said that general consumers can report the applied trademark, and that there is no possibility that general consumers might mistake the quality of the trademark as a product manufactured in Paris as a product manufactured in the sports club that does not exist at present in relation to the women's designated goods.
[1] Article 7 (1) 11 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act
[1] [2] Supreme Court Decision 94Hu2162 delivered on May 12, 1995 (Gong1995Sang, 2126), Supreme Court Decision 95Hu187 delivered on July 28, 1995 (Gong1995Ha, 292), Supreme Court Decision 95Hu958 delivered on September 15, 1995 (Gong1995Ha, 3406), Supreme Court Decision 95Hu208, 2015 delivered on December 10, 1996 (Gong1997Sang, 380)
Mooman City (Law Firm Central Patent Office, Attorneys Lee Byung-ho et al., Counsel for the plaintiff-appellant)
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Trial Office Decision 96Na240 dated December 18, 1996
The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.
The grounds of appeal are examined.
According to the reasoning of the decision of the court below, the court below affirmed the original condition rejecting the registration of the original trademark pursuant to Article 7 (1) 11 of the Trademark Act, on the ground that, as the center of women's fashion, the "PARS" in the trademark of this case applied for on August 2, 1994 (hereinafter referred to as the "the original trademark") is the center of women's fashion, and if the original trademark is used in the towing, string, scarp, scarp, string, slobs, etc., which is the designated goods, the ordinary consumers are directly related to the "PARS SPTRS CLB", and if the original trademark is used for the designated goods not related to the "PASS SPS CLUB", it would cause ordinary consumers to misunderstand the quality of the goods.
However, a trademark that is likely to mislead consumers as to the quality of goods refers to a trademark, the composition itself of which is likely to mislead consumers as to its nature different from that of the designated goods originally possessed, and which is likely to mislead consumers into the quality of the goods shall be determined in accordance with the trade norms on the basis of ordinary consumers (see Supreme Court Decision 95Hu958 delivered on September 15, 1995).
According to records and relevant laws, the Paris sports club, the name of the original trademark, is a virtual sports club that does not actually exist, and as long as the meaning of the Paris, which is the geographical name as the center of women's fashion, has not been particularly emphasized from its name, it cannot be said that the general consumers report the original trademark and are likely to mislead the general consumers into being the products manufactured at the sports club that does not exist at present in relation to the women's designated goods, or to mislead them into being the products manufactured from Paris.
Nevertheless, the court below determined that the original trademark is a trademark likely to mislead the quality of goods, and thus the court below erred in the misapprehension of legal principles as to the trademark which is a quality misleading under Article 7 (1) 11 of the Trademark Act or failing to exhaust all necessary deliberations, which affected the conclusion of the decision. Therefore, there is a reason to point this out.
Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Tribunal for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Kim Jong-sik (Presiding Justice)