[상표등록무효][공1997.4.1.(31),944]
[1] The meaning of, and the standard for determining, a quality misleading trademark under Article 7 (1) 11 of the Trademark Act
[2] 지정상품이 양념통닭으로서 원도형과 문자의 결합상표인 "양념통탉 맥시칸, MEXICAN CHICKEN"이 품질오인적 상표에 해당하는지 여부(적극)
[1] The trademark that is likely to cause the misunderstanding of 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 cause the misunderstanding of consumers, and which is likely to cause the misunderstanding of the quality of the trademark shall be determined in accordance with the trade norms, based on the standard of ordinary consumers.
[2] In light of the registered trademark "YXICN CHEN", which is combined with the original figures and letters, as the designated goods, the part of the word "MEXICN CHEN" is a "Mexico KICN CHN", which is prepared by special cooking methods, and thus, if the above trademark is used in a general norm, which is not prepared by a "Mexico KICN CHEN" method, it is likely that the consumers mistake the quality of the goods.
[1] Article 7 (1) 11 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act
[1] Supreme Court Decision 92Hu124 delivered on June 23, 1992 (Gong1992, 2282), Supreme Court Decision 94Hu623 delivered on December 9, 1994 (Gong1995Sang, 496), Supreme Court Decision 94Hu2162 delivered on May 12, 1995 (Gong195Sang, 2126), Supreme Court Decision 95Hu187 delivered on July 28, 1995 (Gong195Ha, 2992), Supreme Court Decision 95Hu958 delivered on September 15, 1995 (Gong195Ha, 3406) / [2] Supreme Court Decision 94Hu1984 delivered on September 15, 1993, 194; Supreme Court Decision 95Hu19849 delivered on September 13, 1994 (Gong194, 1994)
Macro Macro Doccccck et al.
Maclas Co., Ltd. (Patent Attorney Lee In-bok, Counsel for defendant-appellant)
Korean Intellectual Property Office Decision 94Dao60 dated May 22, 1996
The appeal shall be dismissed. The costs of appeal shall be assessed against the respondent.
The grounds of appeal by the appellant are examined.
A trademark that is likely to cause mistake as to the quality of goods under Article 7 (1) 11 of the Trademark Act refers to a trademark, in itself, that is, the composition of the trademark has the nature different from that of the designated goods originally owned, and is likely to cause mistake to consumers. Whether there is a concern that a trademark might cause mistake as to its quality should be determined in accordance with the trade norms based on the standard for ordinary consumers (see, e.g., Supreme Court Decisions 92Hu124, Jun. 23, 1992; 94Hu2162, May 12, 195).
According to the records, the registered trademark of this case is deemed to be a "Mexico KICN CHEN" prepared by special cooking methods in terms of the letters, which are the designated goods of this case, and thus, if the registered trademark of this case is used in both general norms that are not prepared by 'Mexico KICN CHN' method, it would cause consumers to misunderstand the quality of the goods. In this regard, the court below's decision that the registered trademark of this case was invalid because it violated Article 7 (1) 11 of the Trademark Act and thus, it is just and acceptable, and there is no violation of law such as theory. The argument is without merit.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Sung-sung (Presiding Justice)