The standard of determining whether a trademark constitutes “a trademark likely to mislead or mislead consumers of the quality of goods” under Article 9(1)11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

In determining whether a trademark constitutes “a trademark likely to mislead or mislead consumers as to the quality of goods” under Article 9(1)11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), it shall be reasonably determined by comprehensively taking into account the degree of well-knownness of the trademark, degree of creativity and similarity of the mark, whether the trademark is identical or similar to the designated goods, type of business, degree of business size, and other transaction circumstances.

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

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

[Judgment of the court below] The court below erred by misapprehending the legal principles of free evaluation of evidence, as otherwise alleged in the ground of appeal.

Live drinks Corporation

Korean Intellectual Property Office Decision 89Hun-Ba376 dated July 26, 1991

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

We examine the grounds of appeal.

1. In order to exclude trademark registration of another person as a well-known trademark under Article 9(1)10 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereinafter the same applies), the trademark must be widely recognized among customers and consumers. Whether to grant authorization for a well-known trademark should be determined in light of ordinary social norms by taking into account the period of use, method, mode and quantity of use, scope of transaction, etc. of the trademark and the actual circumstances of transaction of the trademark (see, e.g., Supreme Court Decision 88Hu226, Oct. 10, 1990; 8Hu226, Oct. 10, 199), and where a trademark falls under a trademark similar to a well-known trademark, the trademark registration is not allowed even

However, according to the records, the court below's evidence and circumstance alone cannot be deemed as a well-known trademark that can exclude trademark registration of other persons by widely known domestic traders and consumers. Thus, there is no error of law in violation of the rules of evidence, such as the theory of lawsuit, nor incomplete deliberation, and the court below did not recognize the cited trademark as a well-known trademark even for the reasons of the original decision. In addition, the court below did not recognize the cited trademark as a well-known trademark in determining the well-known trademark, and there is no error in the misapprehension of legal principles as to Article 9 (1) 10 of the former Trademark Act, such as the theory of lawsuit or the reasoning for determining the well-known trademark.

The precedent that points out the theory of lawsuit cannot be an appropriate precedent because it does not coincide with the case in this case. The argument is groundless.

2. In determining whether a trademark constitutes a trademark that misleads consumers as to the quality of the goods under Article 9 (1) 11 of the former Trademark Act or is likely to mislead consumers, the trademark shall be reasonably determined by comprehensively taking into account the degree of well-knownness of the trademark, the degree of creativity and similarity of the mark, the same or similar kind of the designated goods, the type of business, the scale of the business, and other transaction circumstances. According to the records, even if the cited trademark is known to a certain extent to the general consumers of Korea in the category 39 of the goods, the designated goods are not identical or similar to that of the respondent, and it is not identical or similar to that of the respondent, and if the respondent is a food manufacturing company that is widely known to the domestic consumers in Korea, the trademark is not likely to mislead or confuse the source. Accordingly, the fact-finding and decision of the court below to the same purport is justifiable, and there is no violation of the rules of evidence or misapprehension of legal principles, such as the theory of lawsuit.

The precedent pointing out cannot be a proper precedent because it does not coincide with the instant case. The argument is without merit.

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