[1] Method of determining similarity of trademarks

[2] The case holding that the trademark "NTUAL BRD, steel diagrams" and "NTURAL" and the words "NTURAL" are not similar trademarks in preparation for only similar parts, since all of them cannot be added to the essential part

[1] Whether a trademark is similar shall be determined depending on whether there is a concern for mistake or confusion as to the origin of a product based on the direct perception that ordinary consumers or traders feel about the trademark in the transaction of the designated product. Even if there are similar parts between two trademarks, if the parts constituting the essential part are different and so it is possible to avoid confusion as to the origin clearly when the overall observation is conducted, it shall not be deemed a similar trademark.

[2] With respect to the similarity of the applied trademark and the cited trademark with prior registration, the case holding that both trademarks are not similar inasmuch as both trademarks have a significant difference in appearance, and the cited trademark can not be used as a specific name or concept, but can be used as a result of obvious difference in concept and name in that both trademarks are not similar in terms of the following: (a) both trademarks have a significant difference in appearance; and (b) both trademarks are not identical in terms of the fact that the cited trademark may be used as a series of leaves.

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

[1] [2] Supreme Court Decision 90Hu717 delivered on December 11, 1990 (Gong1991, 484), Supreme Court Decision 93Hu1919 delivered on August 12, 1994 (Gong1994Ha, 2303), Supreme Court Decision 94Hu2155 delivered on September 29, 1995 (Gong195Ha, 3627) / [1] Supreme Court Decision 95Hu1395 delivered on December 22, 1995 (Gong196Sang, 553 delivered on April 12, 1996), Supreme Court Decision 95Hu1685 delivered on April 12, 196 (Gong196, 1587), Supreme Court Decision 97Hu19639 delivered on March 195, 195 (Gong196Sang, 1957)

Cambodia (Law Firm Central Patent Office, Attorneys Lee Byung-ho et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 95Na1979 decided October 28, 1996

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

The grounds of appeal are examined.

The court below considered the similarity between the applied trademark of this case (hereinafter referred to as the "original trademark") and the cited trademark based on the earlier application (hereinafter referred to as the "citing trademark") and the cited trademark based on the earlier application, and determined that the essential part of the original trademark is the "NATRAL" among the characters, and the cited trademark is also the "NATRAL" and interpreted as the "NATRAL". Thus, even though the appearance is different, both trademarks are similar in the same and similar name, and thus are similar in the objective, overall, and external observation of both trademarks at the same and similar level. Therefore, if both trademarks are used together for the designated goods identical or similar to the identical or similar trademarks, there is a concern that it may cause misconception or confusion about the origin of goods to ordinary consumers or traders, pursuant to Article 7 (1) 7 of the Trademark Act, the original condition rejecting the registration of the original trademark is justified.

However, the similarity of a trademark shall be determined depending on whether there is a concern for mistake or confusion as to the origin of goods based on the direct perception that ordinary consumers or traders feel about the trademark in the transaction of the designated goods. Even if there are similar parts between two trademarks, if the parts constituting the essential part are different and it is possible to avoid confusion as to the origin clearly when the overall observation is conducted, it shall not be deemed a similar trademark, and a technical mark indicating the quality, raw materials, etc. of the designated goods shall not be deemed an essential part of the trademark without distinctiveness (see Supreme Court Decision 94Hu2155 delivered on September 29, 195).

According to the records, the term "NTURAL" among the two trademarks has the meaning of "natural, natural, or not processed," and in light of the current state of the English dissemination in our country, ordinary consumers or traders are aware of the meaning of "natural food additives", "natural whites", "natural whites", "raws", and " artificial shots" in relation to each of the two trademarks, so it cannot be an essential feature because it displayed the quality or raw materials of the designated goods and thus it cannot be an essential feature, and it is not appropriate to determine the similarity of the two trademarks only with the word of the two trademarks, since there is no distinctive character in relation to the designated goods. Accordingly, in preparation for each part of the remaining trademarks, if there is a remarkable difference between the two trademarks, the concept of the two trademarks can not be cited in terms of the concept of the origin and appearance of the trademark.

If so, when observing the original trademark and the cited trademark in the whole, objective, and separately, it is not similar to each other in terms of appearance, name, and concept. However, the court below held that both trademarks are similar in different opinions. Thus, the court below erred by misapprehending the legal principles as to the similarity of trademarks, which affected the result of the trial decision. The ground for pointing this out is with merit.

Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)