The purpose of legislation of Article 8 (1) 7 of the former Trademark Act (Act No. 2957) and the method of determining whether it falls under such purpose of legislation

Article 8(1)7 of the former Trademark Act (Act No. 2957) provides that even if a trademark does not fall under any of subparagraphs 1 through 6 of Article 8(1) of the former Trademark Act provides that a trademark with no special distinction between its own trademark and another person's trademark shall not be registered. Thus, whether a trademark with a special distinction is a trademark shall be determined depending on which general consumers can recognize the source of the goods in relation to the goods in question, and there is no relation between the trademark and the cited mark and the cited mark.

Article 8 (1) 7 of the former Trademark Act (Law No. 2957 of December 31, 1976)

Attorney Ahn Young-young, Counsel for the defendant-appellant-appellee

Patent Attorney Park Jae-soo, Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 113 dated February 28, 1991

The appeal is dismissed.

The costs of appeal are assessed against claimant.

The original trial decision held that the registered trademark cannot be deemed to fall under the provisions of Article 9 (1) 11 of the former Trademark Act, on the grounds that the use of the registered trademark “○○○” for the designated goods “Tertain” could not be readily concluded that general consumers might mislead or confuse the source of the goods. Thus, this case’s registered trademark cannot be deemed to fall under Article 8 (1) 7 of the former Trademark Act (Act No. 2957) and it cannot be deemed that any meaning indicating the quality of the designated goods is contained in the registered trademark. Thus, the registered trademark cannot be deemed to fall under the provisions of Article 9 (1) 11 of the former Trademark Act.

In order to determine whether the registered trademark of this case constitutes "a trademark which does not distinguish one's own goods from another's goods" under Article 8 (1) 7 of the former Trademark Act, the court below should have deliberated and judged whether the registered trademark of this case constitutes "a trademark which does not distinguish one's goods from another's goods" and "a trademark which does not distinguish one's goods from another's goods," and the court below should have deliberated and judged whether the trademark of this case is likely to mislead, confuse or mislead consumers as to the origin in relation to the relation between the claimant's "Sitry Articles Industry Co., Ltd." and the registered trademark of this case (hereinafter the cited trademark). However, the above provision provides that even if a trademark does not fall under Article 8 (1) 1 through 6 of the former Trademark Act, it is not possible to distinguish one's own trademark from another's trademark, i.e., a trademark with a special distinction, and therefore, whether the trademark is a trademark with a specific goods is determined depending on whether general consumers can recognize the origin of the goods.

In addition, according to the records, it is difficult to recognize the cited mark as a well-known trademark, and the "Tertain" as the designated goods of the trademark of this case cannot be deemed as identical or similar goods, which are the designated goods of the cited mark, so even if the trademark of this case is used on the designated goods of the cited mark, it is deemed that there is no possibility of mistake or confusion as to the origin of the goods. Therefore, the original trial decision of this purport is without merit, such as misunderstanding of legal principles and incomplete hearing, as pointed out in the

The appeal is without merit, 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 Jong-soo (Presiding Justice)