Whether the applied trademark is similar to the cited trademark (negative)

The similarity of a trademark is, in principle, to observe two trademarks used for the same kind of product as a whole and to compare and determine the appearance, name, and concept thereof. It is permitted to separate and compare only in exceptional cases where the combination of trademarks is natural so as to be infasible and a series of indivisible. In comparison with the applied trademark and the cited trademark, it is not different from the appearance of the trademark, and as the word "OIVIIVIIVONGUT" is inseparably combined with the word "OOIVIER" and the word "MORGUT", it cannot be called or conceptualized, and as a whole, it is difficult to see that the concept "IB" from the applied trademark is called "OIVIER" and the word "MORGUT", and as a whole, it is not similar to the concept of "IBB".

Article 7 (1) 7 of the Trademark Act

[Plaintiff, Appellant] Plaintiff 1 and 106 (Gong1983, 213) (Gong1983, 213) and 86Hu121 (Gong1987, 539) decided Feb. 24, 1987, Dec. 11, 1990 (Gong191, 487)

[Defendant-Appellee] Es. Es. Es. and 2 others, Counsel for defendant-appellee

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 89Na1065 Dated June 23, 1990

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal Nos. 1 and 2 are examined together.

1. Under its reasoning, the original decision has maintained the original decision refusing an application for registration of the cited trademark on the ground that, if a trademark can be recognized as two or more names or concepts, one of them is similar to the name or concepts of another trademark, the appearance of the original trademark and the cited trademark is different from that of the original trademark, or that, in the expression of the original trademark, "OLIVIER" is similar to those of the original trademark, "OLIVE", "OIVA", "OIVA", "OOIVE", "OOIVA", and "OOIVE", the meaning of the cited trademark is similar to that of the original trademark, on the ground that the word "OLIVE", the concept, and the word are similar to those of the original trademark.

2. However, in principle, the similarity of trademarks shall be determined by observing two trademarks used for the same kind of product as a whole and comparing, examining, and determining their appearance, name, and concept. Only in exceptional cases where the combination of trademarks cannot be deemed natural and a series of indivisible, it shall be allowed to separate and separate and compare their constituent parts (see, e.g., Supreme Court Decision 80Hu106, Nov. 23, 1982; Supreme Court Decision 86Hu121, Feb. 24, 197; Supreme Court Decision 90Hu1147, Dec. 11, 190).

3. According to the records, this original trademark is composed of diagrams and letters, and the cited trademark is composed of two trademarks together with Korean and English characters. In contrast to the two trademarks, the appearance is different, as it is indivisiblely combined with the original trademark, it cannot be said that it is called or conceptualized as "OIVIER" and "MONAGUT", and as a whole, it is called as "OIVIER" and "ONAGUT", and it is not similar to the cited trademark. It is difficult to see that the concept "IB" from the original trademark as well as the word "IBUT" have never been formed or conceptualally combined with the cited trademark.

The court below erred in the misapprehension of legal principles as to the determination of similarity of trademarks by comparing only "OIVIER", which is part of the trademark of the original trademark, with the cited trademark, as it is deemed that there is an error of law in the misapprehension of legal principles as to the determination of similarity of trademarks.

4. Therefore, the original decision shall be reversed and the case shall be remanded to the Korean Intellectual Property Office appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-sung (Presiding Justice)