[1] Criteria for determining similarity of trademarks

[2] In a case where Gap corporation filed a petition for a registration invalidation trial against Eul, the holder of the right to registered trademark " "," on the ground that the registered trademark falls under Article 7 (1) 7 of the Trademark Act, the case affirming the judgment below which held that the two trademarks are similar to the registered trademark, on the ground that ordinary consumers or traders may mislead and confuse the source of goods if two trademarks are used together on the same or similar goods

[3] Criteria for determining similarity of designated goods

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act / [3] Article 7 (1) 7 of the Trademark Act

[1] Supreme Court Decision 99Hu1096 delivered on April 25, 2000 (Gong2000Sang, 1311) / [3] Supreme Court Decision 2003Hu1086 delivered on August 19, 200 (Gong2005Ha, 1520)

Co., Ltd. (Patent Attorney Kang Jong-sung et al., Counsel for the defendant-appellant)

Defendant (Patent Attorney Lee Ho-hoon, Counsel for defendant-appellant)

Patent Court Decision 2012Heo9396 Decided March 14, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the similarity of trademarks in the grounds of appeal

Whether a trademark is similar should be determined depending on whether there is a concern for general consumers or traders to mislead or confuse the source of goods in trade in any one aspect on the basis of the direct perception that ordinary consumers or traders feel about the trademark when observing the appearance, name, and concept of two trademarks used for the same or similar goods. Therefore, even if there are different parts in the appearance, name, and concept, if there is a concern for general consumers to mislead or confuse the source of goods, it shall be deemed similar trademark (see Supreme Court Decision 9Hu1096, Apr. 25, 200, etc.).

According to the reasoning of the judgment below, the court below determined that the two trademarks are similar since the registered trademark of this case (registration number omitted) differs from the appearance of the pre-registered trademark “” as indicated in the judgment below, and the concept cannot be compared, but if two trademarks are used together on the same or similar goods due to similar names, general consumers or traders may mislead or confuse the source of goods.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors by misapprehending the legal principles as to the similarity of trademarks.

2. As to the similarity of goods in the grounds of appeal

The similarity of designated goods shall be determined on the basis of whether it is likely to be mistaken for goods manufactured or sold by the same company when using a trademark identical or similar to the goods compared to the goods. However, the similarity of designated goods shall be determined on the basis of the general transaction norms by comprehensively taking into account the circumstances of the transaction, such as quality, shape, use and production, sales sector, scope of consumers, etc., which are the characteristics of the goods themselves (see Supreme Court Decision 2003Hu1086, Aug. 19, 2005, etc.).

According to the reasoning of the judgment below, the court below determined as follows: among the designated goods of the registered trademark of this case, the "Thoman", which is the designated goods of the designated goods prior to the designated goods listed in the third list of the registered goods, constitutes similar goods that are similar goods that might mislead and confuse general consumers when using them for the above goods.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the similarity of goods

3. Conclusion

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 on the bench.

Justices Kim Chang-suk (Presiding Justice)