[거절결정(상)][미간행]
[1] Whether a trademark is similar in cases where a similar part exists between compared trademarks, but there is little possibility that the trademark alone may be separated and recognizable, or where the trademark can clearly avoid confusion as to its source when the whole observation is made (negative)
[2] The case holding that the applied trademark " " is not similar to the pre-registered trademark " "
[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act
[1] Supreme Court Decision 81Hu29 delivered on June 8, 1982 (Gong1982, 646) Supreme Court Decision 2005Hu2908 Delivered on August 25, 2006 (Gong2006Ha, 1637)
Sheula New Zealand (Patent & Kim, Patent & Lee LLC et al., Counsel for the defendant-appellant-appellant)
The Commissioner of the Korean Intellectual Property Office
Patent Court Decision 2006Heo7023 decided Oct. 11, 2006
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
The similarity of a trademark shall be determined depending on whether there is a concern for ordinary consumers or traders to mislead or confuse the origin of the designated goods in the transaction of the designated goods by observing the external appearance, name, and concept objectively, comprehensively, and separately, and on the basis of the direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if there is little possibility that the part alone may be separated or recognizable, and if it can avoid confusion of the source clearly when the overall observation is made, it shall not be deemed a similar trademark (see, e.g., Supreme Court Decisions 81Hu29, Jun. 8, 1982; 2005Hu2908, Aug. 25, 2006).
In light of the above legal principles and records, the mark of the registered trademark (registration number No. 528174) composed of identical marks with the mark of the applied trademark of this case (application number No. 2004-12808) is similar in that it has both the shape of the dog and the rear bridge attached to the front and the rear side, but it is difficult to conclude that the two trademarks are separated from the shape part because there are multiple trademarks using diagrams as different or similar to the designated goods. On the other hand, it is difficult to conclude that the two trademarks are separated from the shape part, while it is clearly divided into “Labrad Retriever” and “DAWNALD,” and it is deemed that there is no difference between the shape and the shape, and therefore, the trademark of this case and the registered trademark of this case are similar to the trademark of this case, and thus, the court below did not err in the misapprehension of legal principles as to the similarity of the trademark of this case.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Ill-sook (Presiding Justice)