Whether the applied trademark is similar to the cited trademark (negative)

The applied trademark is a combination trademark which combines diagrams and letters, but the figure portion among them consists of finites and pul block featured with flagpole and lin shape, while the word portion is written in a small size on the linite belt, and it seems reasonable to be the essential part of the trademark that can be easily perceived to the users, and since there is no possibility that the applied trademark and the cited trademark are referred to as "hin", it is not similar to the name or concept in that there is no possibility that the shape may be referred to as "hin" as the cited trademark, but the applied trademark may be clearly different from the cited trademark as the whole, and thus, it is not similar to the applied trademark and the cited trademark as it is not similar to the applied trademark.

Article 9(1)7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

[Plaintiff-Appellee-Appellant] Plaintiff 1 and 1 other (Law No. 4555, Apr. 11, 1989) (Gong1990, 2029)

Patent Attorney Lee In-han et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 91Na513 dated August 24, 1992

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal.

According to the reasoning of the decision of the court below, the court below held that since the main trademark (application trademark) is part of the "IVY SPRIT" and its title is similar to the cited trademark (1) (personal trademark) and its title, and even if both trademarks are used on the same or similar goods, the term "IVY SPITIT" of the cited trademark is recognized as the spirit of the prestigious university in the North East East East East East East East East in the United States of America, while the term "IVY" of the cited trademark (1) is used as the medicine of the "IVYAGUE", it is similar to the trademark as a whole, although it appears differently in their appearance, it is likely to mislead or confuse general consumers or traders.

However, the similarity of trademarks is determined by the objective, overall, and different observation of the external appearance, name, and concept of various trademarks used for the same product and thereby, it is likely to cause mistake or confusion as to the origin of the product. Thus, even if one of the external appearance, name, and concept is similar, it cannot be deemed as a similar trademark if it is possible to avoid mistake or confusion as to the source clearly (see, e.g., Supreme Court Decision 80Hu61, Dec. 13, 1983; Supreme Court Decision 84Hu21, Apr. 28, 1987; Supreme Court Decision 86Hu188,189, Sept. 22, 1987; Supreme Court Decision 87Hu74, Dec. 8, 1987; Supreme Court Decision 87Hu789, Apr. 11, 1989; 209Hu879, Apr. 29, 1988; etc.).

However, while the main trademark is a combined trademark consisting of diagrams and letters, among them, stick and pul block is composed of flagpole, and the shape of a belt with a studio. However, while the letter is written in a small letter on the studio belt, it seems that it seems that the above studio part is a part of the trademark that can be remarkably perceived to consumers. Therefore, it is reasonable to say that the above studio part is a part of the trademark that can be remarkably perceived to consumers.

Therefore, although the name or concept is not similar in that the trademark at issue and the cited trademark (1) at issue are not likely to be referred to as "hyb", the trademark at issue and the cited trademark at issue are not likely to be referred to as "hyb". However, the trademark at issue and the cited trademark at issue are likely to clearly change the appearance of the trademark at issue from the cited trademark (1) with the cited trademark at issue, and may avoid confusion and confusion as a whole, and it is not similar to the cited trademark (see, e.g., Supreme Court Decisions 87Hu122, Apr. 11, 1989; 90Hu397, Aug. 28, 1990).

Therefore, the court below's decision that the two trademarks are likely to cause mistake and confusion of the source of the goods if they are used in the same kind of designated goods because they are similar thereto is erroneous in the misapprehension of legal principles as to the similarity of trademarks.

The argument pointing this out is with merit.

Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.