[1] Requirements and criteria for determining whether a trademark constitutes “a trademark likely to mislead consumers” under Article 7(1)11 of the Trademark Act

[2] The case holding that since it is reasonable to view that the pre-use trademark " " " ", " " and the pre-use trademark " " were known to the extent that it can be recognized as a trademark of a specific person at least by domestic consumers or traders at the time of the decision to register the registered trademark " "," the registered trademark and the pre-use trademark's marks are identical or similar to their appearance, name, and concept as a whole, and if they are used in "a glass and sports letters" among the designated goods of the registered trademark, they may be mistaken that they are used by the pre-use trademark holder, the registered trademark is likely to cause misconception or confusion between the pre-use trademark and the source.

[1] If a registered trademark constitutes "a trademark likely to mislead or mislead a consumer" as provided by Article 7 (1) 11 of the Trademark Act, the registered trademark or the goods using the pre-use trademark or the goods thereof, which are compared to the designated goods, are not necessarily required to be famous, and if it is known to a domestic consumer or a trader as such trademark or goods, it is sufficient to be perceived as a trademark or goods of a specific person. In such a case, a trademark identical or similar to the pre-use trademark is being used for the goods identical or similar to the goods using the pre-use trademark, or a trademark is used for the goods identical or similar to the pre-use trademark, or any other trademark is used for the goods identical or similar to the pre-use trademark, or an economic relation between the goods using the pre-use trademark and the goods using the two trademarks, etc., in light of the specific use situation of the pre-use trademark or other general transaction situation, if there is any special circumstance to believe that the trademark is being used by the right holder of the pre-use trademark to the extent that it is not used

[2] The case holding that since it is reasonable to deem that the pre-use trademark " " " " ", " " and the pre-use trademark " " had been known to the extent that it can be recognized as a trademark of a specific person at least by domestic consumers or traders at the time of the decision to register the registered trademark " "," the registered trademark and the pre-use trademark's marks are identical or similar to their appearance, name and concept as a whole, and the trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's trademark's

[1] Article 7 (1) 11 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act

[1] Supreme Court Decision 98Hu1334 delivered on September 3, 1999 (Gong1999Ha, 2093), Supreme Court Decision 2001Hu3187 Delivered on March 11, 2004 (Gong2004Sang, 656), Supreme Court Decision 2004Hu3348 Delivered on June 9, 2006 (Gong2006Ha, 1283), Supreme Court Decision 2006Hu3113 Delivered on June 28, 2007 (Gong2007Ha, 1193)

Licecom Co., Ltd. (Law Firm Hanyang Patent Attorneys Han-soo et al., Counsel for the defendant-appellant)

Defendant (Attorney Lee Jae-dong, Counsel for defendant-appellant)

Patent Court Decision 2009Heo1088 Decided August 20, 2009

The part of the judgment of the court below against the plaintiff as to "glass and glass letters" among the designated goods of the trademark No. 614152 is reversed, and that part of the case is remanded to the Patent Court. The remaining grounds of appeal are dismissed.

We examine the grounds of appeal.

1. In order to constitute a trademark that is likely to deceive consumers as defined in Article 7 (1) 11 of the Trademark Act, the registered trademark or goods of the pre-use trademark compared to the registered trademark or the designated goods are not necessarily required to be well-known, and if a trademark or goods are known to a domestic consumer or a trader, it is so long as it can be perceived as a trademark or goods of a specific person. In such a case, a trademark identical or similar to the pre-use trademark is used on goods identical or similar to the pre-use trademark, or a certain trademark is used on goods identical or similar to the pre-use trademark, or is used on goods identical or similar to the pre-use trademark, or in light of the specific use condition of the pre-use trademark, the degree of economic relation between the goods using both trademarks, and other general transaction circumstances, if there is any special circumstance to mislead consumers as to being used by the right holder of the pre-use trademark to the extent that it is not used on goods identical or similar to the goods using the pre-use trademark (see Supreme Court Decision 301Hu37134, Sept. 301, 1301, 19998).

2. According to the evidence and records adopted by the court below, the pre-use trademarks consisting of " "" and "" were used from around 2003 to around 200, as they were manufactured and sold by the plaintiff company, and attached to jum jum ice clothes such as Titts," and the pre-use trademarks consisting of "" as they were additionally applied for trademark registration on October 7, 2004, and the above pre-use trademarks were used in clothing products of the plaintiff company. The products bearing the pre-use trademarks have increased by 2.5 billion won compared to the preceding half of 2004, 3.7 billion won per annum of the plaintiff company's 2.5 billion won per annum 2,000,0000 won per 8.4 billion won per 2,000,0000 won per 10,0000 won per 2,000,0000 won per 3.4,005,000 won per 2,005.

In full view of the various circumstances, including the number and distribution of stores selling the goods affixed with the above pre-use trademarks, the size and increase in sales, advertisement and publicity activities, and the main consumers of the pre-use trademarks or their goods appear to be a young female and juvenile group with high awareness and dissemination ability as to trademark information in light of the type and characteristics of the goods, it is reasonable to deem that the pre-use trademarks of the Plaintiff company, etc., were known to the extent that at least to be recognizable as a trademark of a specific person by domestic consumers or traders around the date of

In addition, the trademark of this case and the pre-use trademark of this case are identical or similar trademarks with their appearance, name, and concept. The designated goods of the registered trademark of this case are "gras, glass, security-based, common safety-based, line light, handbrus, handcing, underwater bruscing, sports-based, anti-glasscising, safety-based, cryping, cocoping, cryping, container titl, tttren, titrenp, etc." which are different from those of the pre-use trademark, but they are different from those of the pre-use trademark, but if any company becomes specialized in its brand at the time of the decision to register the trademark of this case and it is not likely to mislead consumers as to the origin of clothing, glass, sports-for-sports, or other goods using this brand, it is not likely to mislead consumers as to the origin of the trademark of this case, and thus it is not likely to be used with the trademark of this case."

Nevertheless, the judgment of the court below that the registered trademark of this case does not constitute a trademark that is likely to mislead consumers on the grounds that the pre-use trademarks are not known as a trademark of a specific person and are not economically related between the two goods, is erroneous in the misapprehension of legal principles as to the latter part of Article 7 (1) 11 of the Trademark Act, which affected the conclusion of the judgment. The ground of appeal assigning

3. Therefore, among the designated goods of the registered trademark of this case, the part of the judgment below against the plaintiff as to "Wogles and sports height" is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)