[1] The case holding that the marks, such as the pattern of the leaves and the flowers, etc., of the challenged mark “” were used in a trademark

[2] The case holding that the challenged mark “” does not correspond to the registered trademark “” and does not fall under the scope of the right of the registered trademark

[1] The case holding that even if the marks, such as leaves-shaped theme and flowers, are part of the design, the marks, such as leaves-shaped theme and flowers, are used as trademarks because they functioned to indicate the origin of the other products, such as leaves-shaped theme and flowers, even though they are marked separately on the back of the wrong products, such as tamping the products, which are used in connection with the product.

[2] The case holding that although the challenged mark " " " is somewhat similar to the registered trademark " " " in its external appearance, such as the pentle arrangement method in the shape of leaves, etc., the challenged mark does not fall within the scope of the right of the registered trademark since it is not similar to the registered trademark consisting solely of the original shape without the flame-shaped figure, on the ground that the flowers-shaped figure in various colors in addition to the outer stem line is added within its background, and only the leaves a dominant increase in the leaves, since it is not similar to the registered trademark consisting of the original shape without the flame-shaped figure, and it is not similar because there is no possibility that ordinary consumers may mislead or confuse the origin of the product, different from each other in the name and concept

[1] Article 2 (1) 1 of the Trademark Act / [2] Articles 7 (1) 7 and 75 of the Trademark Act

Potomerdo Poison (Patent Attorney Park Jae-sik et al., Counsel for the plaintiff-appellant)

Detailed Planning Co., Ltd. (Patent Attorney Lee Jae-il, Counsel for defendant-appellant)

July 5, 2007

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on December 20, 2006 on the case No. 2006Da2096 is revoked.

1. Basic facts

A. The registered trademark of this case

(1) Gu gender:

(2) Date of application/registration date/registration number: September 1, 1998/ 199 July 10, 1999/ 450731

(3) Trademark right holder: plaintiff

(4) 지정상품 : 비금속제공기, 비금속제대접, 비금속제받침접시, 비금속제접시, 비금속제찻잔, 비금속제사발, 비금속제찻주전자, 비귀금속제쟁반, 비귀금속제밀폐용기, 설탕통, 양념통, 머그잔, 스푼꽂이, 스푼받침대{구 상품류 구분(2001. 12. 24. 산업자원부령 제146호로 개정되기 전의 것) 제21류}

(b) a challenged mark;

(1) Composition:

(b) Goods for use: Corresponding, such as a cambling;

C. Details of the instant trial decision

On August 12, 2006, the defendant filed a claim against the plaintiff who is a trademark right holder, on the ground that the challenged mark does not fall under the scope of the right of the registered trademark of this case, and the Korean Intellectual Property Tribunal deliberated on it as No. 2006Da2096, and rendered the decision of this case which cited the defendant's request for a trial on December 20, 206.

[Evidence] Evidence Nos. 1 and 2, and the purport of the whole pleading

2. Determination on the legitimacy of the instant trial decision

A. Whether the challenged mark is used as a trademark

(1) Criteria for determination

Even in a case where a mark similar to another person’s registered trademark is used, if it is not intended to indicate the source that it is an essential function of the trademark, but rather can not be perceived as the use of the trademark due to the use only as a design (see, e.g., Supreme Court Decisions 96Do1424, Feb. 14, 1997; 2005Hu810, Nov. 25, 2005). However, even if the design and the trademark are not in an exclusive and selective relationship, the use of the trademark should be deemed as a trademark if it is used to indicate the source of other goods that can be deemed an essential function of the trademark (see, e.g., Supreme Court Decisions 96Do1424, Feb. 14, 1997; 200Hu6868, Dec. 22, 2000).

(2) Facts of recognition

If Gap evidence Nos. 4-1 through 4, Gap evidence Nos. 6-14, Gap evidence Nos. 15-1 through 7, Eul evidence Nos. 16, Eul evidence Nos. 16, Eul evidence Nos. 2, Eul evidence Nos. 5, Eul evidence Nos. 6, and Eul evidence Nos. 6, the plaintiff's products were imported and sold in Korea through Han-U.S. corporation. The sales from around 1999 to 2006 were about KRW 5.2 billion, and about about about 120 billion from 1998 to about 10,000, such as various magazines, daily newspapers, current department store advertising books, etc., about 60 times in broadcasting, cable Nos. 1, 2, 5, and 60 times in broadcasting, cable Nos. 1, 7, and 700 in advertising, etc., thereby making it known to domestic consumers or domestic consumers as follows.

A person shall be appointed.

An advertisement was made on the clocks of Tues, etc., which can be seen as the registered trademark of this case, and the fact that the shape of a clocks and flowerss, etc. is de facto indicated in the clocks of leaves and in that clocks, etc., which can be seen as the registered trademark of this case, and the defendant, from January 3, 2002, sold a clocks, such as a clock with the verification mark like “”, and on the back of the selling product, can be recognized

(3) Conclusion

According to the above facts, the mark subject to confirmation has been used for the purpose of indicating the source of self-processed products by de facto describing the shape, such as the mouth and the flowers and brin in the shape of leaves, such as a tampry, in a false product, such as a tampmeral product contact, etc., and considering that such source indication is considerably known to domestic consumers or customers, even though the Defendant, even though the Defendant has a separate origin indication on the back of the tamper product, such as a tampry and a flowers in the shape of leaves, and has some function as a design of the tamper product, on the other hand, even though the marks such as the tampry and flowers in the shape of leaves, have a function to indicate the source of the other product, the mark subject to confirmation is used as a trademark.

B. Whether the registered trademark of this case and the marks subject to confirmation are similar

(1) Criteria for determination

Whether a trademark is similar or not shall be determined by whether there is a concern for misconception or confusion in trade through an objective, overall, and external observation in terms of the appearance, name, and concept of the trademark compared. In particular, the shape of the figure trademark has a dominant increase. Thus, if the appearance of both trademarks is identical or similar and used for the same kind of product, if there is a concern for general consumers to mislead or confuse the origin of the product, both trademarks are similar (see Supreme Court Decisions 93Hu1605 delivered on March 22, 1994; 98Do2743 delivered on December 26, 200). The appearance similar to the appearance of the trademark refers to a case where the external appearance of the trademark, such as characters, diagrams, signs, etc. written in two trademarks compared, is easily confused if it is invoked from the perspective of the appearance of the trademark, and thus, if it is similar, it is necessary to determine whether the appearance of the trademark is similar or not.

(2) Whether it is similar

(가) 이 사건 등록상표는 “ ”와 같이 야구공의 봉합선 모양, 또는 나뭇잎 모양을 연속적으로 둥그렇게 연결하여 구성한 상표임을 알 수 있고, 반면 이에 대비되는 확인대상표장은 “ ”와 같이 담쟁이넝쿨과 비슷한 나뭇잎을 둥그렇게 연결한 모양의 도형(이하 ‘나뭇잎 도형’이라고 한다) 내에 “ ”와 같은 붉은색의 꽃과 연두색 등의 꽃잎 및 나비, 잠자리 등이 사실적으로 묘사된 도형(이하 ‘꽃모양 도형’이라고 한다)을 배치한 표장이다.

먼저 외관에 있어서, 확인대상표장의 구성 부분 중 외곽선의 담쟁이 넝쿨모양이 둥그렇게 배열되어 있는 배열기법 등이 이 사건 등록상표와 다소 유사한 점이 있다고 볼 수 있으나, 확인대상표장의 나뭇잎 도형과 꽃모양 도형을 전체적·직관적·이격적으로 관찰할 경우에 있어서 확인대상표장은 이러한 외곽선의 나뭇잎 도형 외에도 각종 색채로 도안화한 꽃모양 도형이 그 바탕면 내에 추가되어 있고, 나뭇잎 도형만이 지배적 인상을 남기지도 않으므로, 꽃모양 도형이 없이 원형모양만으로 구성된 이 사건 등록상표와는 일반 수요자의 입장에서 서로 유사하다고 보기는 어렵다. 그리고 확인대상표장의 나뭇잎 도형 테두리와 꽃모양 도형은 전체로서 하나의 도형으로 조화를 이루고 있고 그 표현 수법이 비슷하며, 도형이 자연물의 사진이거나 사진과 동일할 정도로 사실적으로 묘사되었다고 하여 식별력이 없다고 단정할 수 없어서 이를 분리관찰하거나 나뭇잎 도형만을 요부라고 할 수 없다.

Next, in terms of the name and concept, although it is difficult to see a particular name or concept from the figure, the registered trademark of this case can be seen as the composition of the challenged mark, and the two are different from the name and concept.

Therefore, the registered trademark of this case and the challenged mark are similar because the appearance, name, and concept of the trademark of this case are different, so there is no concern for ordinary consumers to mislead and confuse the origin of goods.

(B) As to this, the Plaintiff asserts that the instant registered trademark, in the shape of leaves, is well-known and well-known, and thus, the instant registered trademark is similar, since it leaves the instant registered trademark from leaves of trees during the challenged mark.

The plaintiff's assertion based on this premise is without merit, since there is no evidence to acknowledge that tmermerion products, such as leaves diagrams, were known to domestic consumers or traders, or that tmermerion products were known to domestic consumers or traders, or are well known and well-known only with the instant registered trademark, such as leaves diagrams, etc., and thus, the plaintiff's assertion on this premise is without merit.

(c) Markets:

As seen above, the challenged mark is not similar to the registered trademark of this case and does not belong to the scope of its right. Thus, the trial decision of this case, which is the same conclusion, is justifiable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Jong-soo (Presiding Judge) Kim Jong-soo