[1] Whether the trademark is similar in a case where a similar part exists between compared trademarks, but there is little possibility that the trademark alone may be separated and recognizable, or where the trademark can clearly avoid confusion of sources when the whole observation is made (negative)

[2] The case holding that the registered service mark consisting of the letters "Korea Edices" or "Korea EEXRES" in the horse or in the form of a person and its trade name is not similar to the registered service mark using only the letters

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

[1] Supreme Court Decision 2005Hu2908 Decided August 25, 2006 (Gong2006Ha, 1637), Supreme Court Decision 2006Hu3557 Decided May 11, 2007, Supreme Court Decision 2008Hu4783 Decided April 9, 2009 (Gong2009Sang, 6755)

Defendant

Prosecutor

Seoul Eastern District Court Decision 2008No1475 Decided April 30, 2009

The appeal is dismissed.

We examine the grounds of appeal.

The similarity of trademarks shall be determined based on whether there is a concern for ordinary consumers or traders to mislead or confuse the origin of the designated goods in the transaction of the designated goods by observing the appearance, name, and concept of the trademark objectively, comprehensively, as a whole, and on the basis of the direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if there is little possibility that the trademark can be separated or recognizable, and if it can avoid confusion of the source clearly when observing the whole part, it cannot be deemed a similar trademark (see, e.g., Supreme Court Decision 2006Hu3557, May 11, 2007).

In light of the above legal principles and the records, the victim's trade name using only the registered service mark of this case and the part among the registered service marks of this case and the part among the registered service marks of this case combined with the word "Korea EXRES" or the word "Korea EXRES" shall be similar in each part. However, "Daehan" in the above part means the Republic of Korea, and "EXRES" is an English or Korean sign, which means an rapid or a delivery and has no or weak distinctiveness. Thus, it is difficult to deem that the trade name of the defendant's business without a distinctive character among the registered service marks of this case, is likely to cause mistake or confusion in the source of goods, as a whole, as well as each registered service mark of this case and appearance of each registered service mark of this case, and even in the name and concept, it is difficult to deem that there is a concern that general consumers or traders may confuse the source of goods.

In the same purport, the judgment of the court below that denied the similarity of the above two parties is justifiable.

The court below did not err in the misapprehension of legal principles as to the determination of similarity of service marks as alleged in the grounds of appeal.

On the other hand, the issue of whether a mark indicating another person's name, trade name, mark or other business is widely known in the Republic of Korea under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act shall be based on the period of use, method, pattern, quantity of use, scope of transaction, etc., the actual condition of goods transaction, and whether it is objectively widely known under the social norms (see, e.g., Supreme Court Decisions 96Ma364, Feb. 5, 1997; 9Do691, Sept. 14, 2001). According to the evidence adopted by the court below and its recognized facts, the judgment of the court below that it is insufficient to recognize the victim company as a domestic well-known service mark in light of the period of use, sales, sales, type and period of advertisement, frequency, etc. of each registered service mark of this case, is justified.

The judgment of the court below is not erroneous in the misapprehension of the rules of evidence or the misapprehension of the legal principle.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)