The purpose of Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) and the requirements for determining the trademark that is likely to deceive consumers under the same Article (=the time when the trademark registration ruling is rendered)

Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) provides that a trademark likely to mislead consumers as to the quality of goods or to deceive consumers shall not be registered. The purport of the above provision is not to protect the existing trademark, but to prevent general consumers from being misled or confused about the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person, and to protect the trust thereof. Thus, in order to determine that there is a concern that the quoted goods or the quoted trademark may only be known and known, and if it is known to the extent that it is possible to recognize consumers or traders as the goods or the trademark of a specific person if it is the goods or the trademark of a specific person at least in domestic general transactions, such similar trademark is used on the designated goods, and there is concern that ordinary consumers may mislead or confuse the origin of the goods if it is used on the same designated goods, and whether it is possible to determine whether there is concern for consumers only at the time of trademark registration.

Article 9(1)11 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 Young-chul and 1 other, Counsel for plaintiff-appellant) and 1 other, Counsel for plaintiff-appellant and 1 other, Counsel for plaintiff-appellant)

[Plaintiff, Appellant] Hani et al., Counsel for plaintiff-appellant

E.S. L.C., Inc. and one other, Counsel for the plaintiff-appellant-appellant

Korean Intellectual Property Office Decision 121 dated January 31, 1992

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

We examine the grounds of appeal.

1. According to the reasoning of the original decision, the court below, based on evidence, found that the trademark is composed of letters and diagrams No. 15, and its 10 items such as luminous, oral, paint, and nitrous as designated goods of No. 15, Nov. 1, 1985, and registered Oct. 23, 1986 under the registration ruling of Sep. 26, 1986. The cited trademark is composed of letters and the 15 luminous system as designated goods of No. 15, and the claimant company's trademark was established on Jan. 8, 1962 with the trade name of No. 197, and its trade name was changed to Masi Chemical Industry Co., Ltd. on Aug. 24, 1982, and thus, it cannot be viewed that there was no error of law as to 300 times prior to the application date of No. 197, Oct. 14, 1985.

2. Article 9 (1) 11 of the former Trademark Act provides that a trademark which is likely to mislead or mislead consumers as to the quality of goods or to deceive consumers shall not be registered. The purport of the above provision is not to protect the existing trademark, but to prevent general consumers from being misled or confused about the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person, and to protect consumers' trust thereon. Thus, if it is known to the extent that it can be recognized as a specific person's goods or trademark if the goods or trademark is used for the same designated goods, the quoted goods or quoted trademarks are not necessarily well-known or well-known, but at least in domestic general transactions, and if it is known to the extent that it can be recognized as a specific person's goods or trademark, it may cause general consumers to mislead or confuse the place of goods delivery, and whether it is likely to mislead consumers, or not, consumers shall be determined at the time of trademark registration (see, e.g., Supreme Court Decision 9Hu1801, Jun. 11, 1991);

Therefore, the court below determined that the registered trademark is not in conflict with subparagraph 11 of Article 9 (1) of the former Trademark Act because the court below acknowledged the sale quantity and advertisement result of the goods affixed with the cited trademark from November 1, 1985 to November 1, 1985, on the sole basis of the evidence submitted by the claimant and rejected all the evidence issued after the filing date of the registered trademark among the evidence submitted by the claimant, and recognized the sale quantity and advertisement result of the goods affixed with the cited trademark, and that the cited trademark cannot be seen as being known enough to mislead consumers on the basis of the above facts. The court below erred by misapprehending the legal principles as to subparagraph 11 of the same Article and failing to exhaust all necessary deliberations.

However, according to the records, after the filing date of the registered trademark, the claimant additionally sold 28,085,250 won of the product price with the quoted trademark from September 26, 1986, which is the date of registration, to the date of the application date of the registered trademark. Two times (No. 17, 18) in the calendar of 1986, two times (No. 17, 18), eight times in the price information place from November 1, 1985 to September 1986, the product with the quoted trademark was advertised (No. 38-10, 17 of evidence No. 38), and on the KBS-2 television program on April 1986, the claimant introduced the product with the quoted trademark from the quoted trademark to the consumers (No. 19), and it is difficult to recognize that the court below's general consumers' goods were known to the extent that it could have known that the trademark could have been sold to the Incheon District Prosecutors' Office's goods.

Ultimately, the above mistake by the court below does not affect the result of the trial decision. The argument is without merit.

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 Kim Yong-sung (Presiding Justice)