Whether the application trademark "FOREX" and the cited trademark "HOREX" are similar (affirmative)

In determining whether a trademark falls under Article 9 (1) 7 of the Trademark Act, the similarity between two trademarks used in the same or similar goods shall be determined depending on whether there is a concern for general consumers or consumers to mislead or confuse the origin of goods in light of the trade norms by observing the appearance, name, and concept objectively, as a whole in terms of objective, overall, and separation. Even if there are different parts among trademarks, it shall be deemed similar trademarks that are likely to cause misconceptions or confusions when observing as a whole the same or similar parts, and it shall be deemed that there is a concern for causing confusions or confusions as to the origin of goods when observing as a whole. Therefore, in the cited trademark "HIPEX", the cited trademark "HI" is merely a type of "PREXX" as it is merely a type of "high grade" part, and thus, if the cited trademark is referred to as "PREX", it is similar to the original trademark consisting of "FOREXX" in the English language, and thus, it is likely to cause confusion with the designated goods if it causes confusion.

Article 9(1)7 of the Trademark Act

Supreme Court Decision 89Hu132 Decided July 11, 1989

LiBD Law Firm Central Patent Office, Attorney Lee Byung-ho, Counsel for the plaintiff-appellant-appellant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 89Na208 dated November 30, 1989

The appeal is dismissed.

The costs of appeal shall be assessed against the applicant.

With respect to the grounds of appeal by the applicant’s attorney:

In determining whether a trademark falls under Article 9 (1) 7 of the Trademark Act, the similarity of two trademarks used for the same or similar goods shall be determined based on whether there is a concern for general consumers or consumers to mislead or confuse the origin of goods in light of trade norms by observing them in terms of their appearance, name, and concept objectively, overall, and separation level. Even if there are different parts between trademarks, the parts constituting the essential part are identical, similar parts that are likely to cause mistake or confusion when the overall observation is made (see Supreme Court Decision 87Hu132 delivered on July 11, 1989).

According to the reasoning of the original decision, the court below held that "HI" among the cited trademark "HIP REX" is merely a type of "POREX" with the meaning of "high level" and therefore its essential part is "POREX", so if the cited trademark is called "POREX", it is similar to the original trademark composed of "FOREX" and its designated goods, so it may cause users to mistake or confuse the source of goods. The above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles or incomplete deliberation of the Trademark Act, such as the theory of lawsuit. The precedents of party members cited by the theory of lawsuit cannot be viewed as an appropriate precedent in this case, unlike this case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)