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(영문) 대법원 2010. 1. 28. 선고 2009후3275 판결
[등록무효(상)][미간행]
Main Issues

[1] Criteria for determining whether a trademark constitutes “a trademark likely to mislead consumers” under Article 7(1)11 of the Trademark Act

[2] The case holding that since the pre-use trademark " " " " "," " " was known to the extent that it would be recognized as a trademark of a specific person at least to domestic consumers or traders on the date of the decision to register the registered trademark " "," and the marks of two trademarks are identical or similar in their appearance, name, and concept as a whole, and thus, if the registered trademark is used on the goods of "sub-use trial", it may be mistaken that the pre-use trademark is used by the pre-use trademark holder, the registered trademark may cause misconception or confusion between the pre-use trademark and the source, and thus

[Reference Provisions]

[1] Article 7 (1) 11 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act

Reference Cases

[1] Supreme Court Decision 98Hu1334 delivered on September 3, 1999 (Gong1999Ha, 2093) Supreme Court Decision 2001Hu3187 Delivered on March 11, 2004 (Gong2004Sang, 656) Supreme Court Decision 2004Hu3348 Delivered on June 9, 2006 (Gong2006Ha, 1283)

Plaintiff-Appellant

Licecom Co., Ltd. (Law Firm Hanyang Patent Attorney Kim Young-chul et al., Counsel for the defendant-appellant)

Defendant-Appellee

Defendant (Patent Attorney Gyeong-hee et al., Counsel for the defendant-appellant)

Judgment of the lower court

Patent Court Decision 2009Heo1095 Decided August 20, 2009

Text

The part of the judgment of the court below against the plaintiff regarding the registration number No. 68260 as the designated goods of the trademark No. 68260 is reversed, and that part of the case is remanded to the Patent Court. The remaining appeal is dismissed

Reasons

We examine the grounds of appeal.

1. In order to constitute a trademark that is likely to deceive consumers as defined in Article 7 (1) 11 of the Trademark Act, the registered trademark or goods of the pre-use trademark compared to the registered trademark or the designated goods are not necessarily required to be well-known, and if a trademark or goods are known to a domestic consumer or a trader, it is so long as it can be perceived as a trademark or goods of a specific person. In such a case, a trademark identical or similar to the pre-use trademark is used on goods identical or similar to the pre-use trademark, or a certain trademark is used on goods identical or similar to the pre-use trademark, or is used on goods identical or similar to the pre-use trademark, or in light of the specific use condition of the pre-use trademark, the degree of economic relation between the goods using both trademarks, and other general transaction circumstances, if there is any special circumstance to mislead consumers as to being used by the right holder of the pre-use trademark to the extent that it is not used on goods identical or similar to the goods using the pre-use trademark (see Supreme Court Decision 301Hu37134, Sept. 301, 1301, 19998).

2. According to the evidence and records adopted by the court below, the pre-use trademarks consisting of " "" and "" were used from around 2003 to around 200, as they were manufactured and sold by the plaintiff company, and attached to jum jum ice clothes such as Titts," and the pre-use trademarks consisting of "" as they were additionally applied for trademark registration on October 7, 2004, and the above pre-use trademarks were used in clothing products of the plaintiff company. The products bearing the pre-use trademarks have increased by 2.5% compared to the preceding half of 2004, 3.7 billion won for the first half of 200,000 won for the first half of 200,0000 won for 200,0000 won for the first half of 205,000 won for the first half of 205,000 won for the first half of 205,000 won for the first half of 205.

In full view of the various circumstances such as the number and distribution of stores selling the goods affixed with the above pre-use trademarks, the size and increase in sales, advertisement and publicity activities, the details of the pre-use trademarks or their products, and the fact that the primary consumers of the pre-use trademarks or their products appear to be a young female and juvenile class with high awareness and propagation of trademark information in light of the type and characteristics of the goods, it is reasonable to deem that the pre-use trademarks of the Plaintiff company had been known to the extent that at least domestic consumers or traders could be perceived as trademarks

In addition, the registered trademark of this case and the pre-use trademark of this case are identical or similar trademarks with their appearance, name, and concept. "Clocks, mast, stop, stop, visual base, clock, clock, clock poppy, visual poppy, clock, visual cable, visual cable, clocks, clocklocks, primary clock, car strawling, electric, visual, electric, visual, control, control, cro-ray, cro-ray, cro-ray, cro-ray, cro-ray, cro-ray, cro-ray, cro-ray, stop, stop, stop, which are the designated goods of the registered trademark of this case, and if the goods of the pre-use trademark of this case are different from those of the pre-use trademark, the goods of this case may be common to consumers, and if the goods of this case are already manufactured or sold by the company's brand or other goods of this case, it may not be known to the general consumers."

Nevertheless, the judgment of the court below that the registered trademark of this case does not constitute a trademark that is likely to mislead consumers on the grounds that the pre-use trademarks are not known as a trademark of a specific person and are not economically related between the two goods, is erroneous in the misapprehension of legal principles as to the latter part of Article 7 (1) 11 of the Trademark Act, which affected the conclusion of the judgment. The ground of appeal assigning

3. Therefore, among the designated goods of the registered trademark of this case, the part of the judgment below against the plaintiff as to the "sprinke" among the designated goods of the registered trademark of this case is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's remaining appeal is dismissed. It is so

Justices Cha Han-sung (Presiding Justice)

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