A. Criteria for determining similarity of trademarks

B. Whether the applied trademark is similar to the cited trademark

(a) The similarity of trademarks is, in principle, permissible by observing two trademarks used for the same kind of product as a whole to compare, examine and determine external appearance, name, and concept as a whole, but only in exceptional cases where the combination of trademarks cannot be deemed natural and a series of indivisible.

(b) [Application Trademark] The term “LE” in the context of “LE” is recognized as the term “A” and “HAUS” as it is difficult to see that a general consumer or a trader is perceived as “house” and thus, it is not natural to separately observe each of the above words as well as the general term “LE” as a comprehensive and general term that is commonly used as the term “house” and “LE” is not simply a general term “HAUS,” but a series of indivisible parts and thus, it cannot be called as HAUS, and thus, it may not be called as HAUS, and it may not be confused with HAUS, in view of the objective, overall, and external observation of the applied trademark and [personal trademark], and there is no concern to mislead or confuse the source of goods even in the case where two trademarks are used for the same designated goods.

Article 9 (1) 7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

Supreme Court Decision 89Hu544 delivered on November 14, 1989 (Gong1990,37) 90Hu1147 delivered on December 11, 1990 (Gong1991,487) 90Hu1338 delivered on May 28, 1991 (Gong191,174)

[Judgment of the court below]

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 91Na921 dated October 30, 1992

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

We examine the grounds of appeal.

According to the reasoning of the decision of the court below, the court below held that when comparing the original trademark (application trademark) with the original trademark (personal trademark), it is more objective to recognize that the two are different from the original trademark (application trademark). However, consumers representing the original trademark are aware of the concept of "LE" and the meaning of "LE" among the original trademark in terms of the actual circumstances of Korea's trade society, rather than recognizing the meaning of "LE" as the place of winding, etc., consumers are aware of the original trademark as the English name of the Republic of Korea. Thus, consumers recognize the "LE" among the original trademark's composition as a sex weather, and recognize the original trademark as the meaning of "HAUS" as the combination of the original trademark as the meaning of the cited trademark when recognizing the original trademark as the "house of HAS," the original trademark as a whole is similar to that of the cited trademark, and thus, consumers are able to use the trademark as a trademark after the original trademark as a trademark, and if the original trademark as a whole causes confusion between the original trademark and the designated goods as a general consumer.

However, in principle, the similarity of trademarks shall be determined by observing two trademarks used in the same kind of goods as a whole and comparing, examining, and determining their appearance, name, and concept. However, only in exceptional cases where the combination of trademarks cannot be deemed natural or indivisible, it shall be permitted to separate, extract, compare, and compare their component parts only in exceptional cases where the combination of trademarks is not natural or a series of indivisible. According to the records, the overall observation of both trademarks is difficult to regard the trademark as “LE” as the nature of “n”, “HAUS” as the meaning of “n”, and it is difficult to regard the general consumers or traders to recognize it as “n's house”, and therefore, it is difficult to separately observe and observe each of the above words as well as the general terms, “LEE” as a comprehensive and general term used for the collection of goods, and thus, it shall not be deemed that there is any possibility of confusion between the two trademarks as a whole and the designated goods, and thus, it shall not be deemed that there is no objective meaning of the trademark as well as the general trademark as a combination of goods.

Nevertheless, the court below maintained the original decision rejecting the registration of the original trademark under Article 9 (1) 7 of the former Trademark Act by deeming the original trademark as similar to the cited trademark. Such original decision contains an error of law by misapprehending the legal principles as to the determination of the original trademark under the Trademark Act, and there is a ground for appeal pointing this out.

Therefore, 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 Choi Jae-ho (Presiding Justice)