Whether the pending service mark “” is likely to cause mistake or confusion as to the source of trade services, similar to the pre-registered service mark “” and “” (affirmative)

The pending service mark “” and the pre-registered service mark “ “” and “ “” are different from the overall appearance of each figure model and text, but all of the above service marks can be briefly named as “Iz” or “Iz hotel”. Thus, if the pending service mark and pre-registered service mark are used for the designated service business of hotel business, etc., which are the same or similar type of name, there may be misconception or confusion about the source of trade services due to the same or similar nature of name. Thus, the pending service mark cannot be registered as it falls under Article 7(1)7 of the Trademark Act.

Article 7 (1) 7 of the Trademark Act

High Court Decision 201Na1448 decided May 1, 201

The Commissioner of the Korean Intellectual Property Office

June 21, 2006

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on January 26, 2006 on the case No. 2005 Won3189 shall be revoked.

1. Basic facts

(a) Details of the trial decision;

The Korean Intellectual Property Office rendered a decision of rejection on the ground that the registered service mark of this case under Paragraph (b) below (C) is similar to the registered service mark 1, 2 and 3 under Paragraph (d) and constitutes Article 7 (1) 7 of the Trademark Act. The Korean Intellectual Property Tribunal also rendered a decision of rejection on the ground that the plaintiff's appeal against the above decision of rejection was dismissed for the same reason.

B. The pending service mark

(1) Composition:

(2) Date/application number: February 5, 2004/ 2004-2316

(c) Designated service business: Hotel business, tourist accommodation business, youth hostel business, condominium business, hotel reservation business, etc. (Category 43 of service businesses);

(c) Prior registered service mark 1;

(1) Composition:

(2) Date of application / Date of registration / Date of renewal/registration number

: November 1, 1980/31 March 21, 1984/ May 20, 1996

(c) Designated services: Hotel business, Lestoctic business, youth hostel business, travel information brokerage business, etc. (Classification of service businesses of Type 112);

(d) Prior registered service mark 2;

(1) Composition:

(2) Date of application/registration date/registration number: March 2, 200/ June 5, 2001/68516

(c) Designated services: Hotel business, Lestop business, etc. (Classification of service categories 43);

【Ground for Recognition: Facts without dispute】

2. Whether the pending service mark and the prior registered service mark are similar

(a) Legal doctrine;

The similarity of trademarks shall be determined by whether there is a concern for mistake or confusion as to the origin of the goods by observing the appearance, name, and concept of two trademarks in an objective, overall, and separately, and based on a direct perception that ordinary consumers or traders feel with respect to the trademark. However, in the case of a combined trademark in which each constituent element of letters, letters, or figures is combined, it is not merely a name, concept, but a separate observation of each constituent element is not an integral combination to a degree that it is deemed natural not to be natural in the trade. In addition, in a case where two or more names or concepts can be considered from one trademark, if it is deemed that one of them is identical or similar to that of another trademark (see, e.g., Supreme Court Decision 2004Hu253, Nov. 25, 2005).

(b) Preparation for both service marks;

Examining whether the pending service mark is similar to the prior registered service mark in light of the above legal principles, first of all, the pending service mark of this case is a mark consisting of two parts below upper and lower half of the letters “hz hotel”, and the prior-registered service mark 1 is a mark consisting of three parts of the shape of king, KON, and KON, and the two parts of the prior-registered service mark consisting of three parts of the English letters “HTRITS” and the English letters “PARS” at the bottom of the figure, and the prior-registered service mark 2 is a mark consisting of the English letters “RITZ”. The two parts of the prior-registered service mark are different from each other depending on their shapes and characters.

However, according to the similarity of name, the pending service mark of this case does not consist of an indivisible combination of letters and diagrams or a combination of new names and concepts, and in relation to the designated service business, the term “mar” in the text portion refers to a broad place (quare) located in the front of a business establishment of a market, commercial building, or a large shopping center, etc., such as “mar” has weak distinctiveness and its essential part is the “marz.” as it lacks distinctiveness in Korean language of “plaza.” Since the separate observation of the text portion is not an indivisible combination to the extent that it is deemed natural in the trade, it can be called as “hz hotel”, “hz hotel” or “hz”. Thus, the registered service mark of this case may be called as “marz hotel” or “marz” in its composition, and thus, it appears that the registered service mark of this case and the registered service mark of this case may be used as the same or similar combination of the designated service business users in the form of “mar or service business.”

(c) Conclusion

Ultimately, the pending service mark and the pre-registered service mark of this case are similar service marks that differ in their appearance at the time of overall observation, but are likely to cause mistake or confusion as to the source of trade services due to similar names, and thus, the pending service mark of this case cannot be registered under Article 7 (1) 7 of the Trademark Act. Accordingly, the decision of this case is legitimate.

[Reasons for Recognition: Each entry, empirical rule, and purport of oral argument as to Gap evidence 1 to 5]

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Judge)