[1] Criteria for determining similarity of figure trademarks

[2] In a case where “A”-user corporation of the challenged mark “B” with “Trts et al.” as a product using the goods files a claim for a passive confirmation of the scope of a trademark right against “B”-owner of the registered trademark “B” as the designated goods, the case holding that the judgment below erred by misapprehending the legal principles, although the two marks are similar to each other

[1] Article 75 of the Trademark Act / [2] Article 75 of the Trademark Act

[1] Supreme Court Decision 2010Do15512 Decided March 14, 2013 (Gong2013Sang, 692) Supreme Court Decision 2010Da58261 Decided March 28, 2013 (Gong2013Sang, 724)

1. The term “the term “the term” means “the term” means “the term or “the term” means “the term or “the term”.

Defendant (Patent Attorney Lee Jae-jin, Counsel for defendant)

Patent Court Decision 201Heo2169 decided June 10, 201

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

1. Whether a trademark is similar or not should be determined by whether there is a concern for mistake or confusion in trade by objectively, comprehensively, and separately observing the compared trademark in terms of appearance, name, and concept in terms of appearance, and appearance. In particular, in cases of figure trademarks, if the dominant increase in appearance is identical or similar, and if two trademarks are used together with the identical or similar goods, it would cause general consumers or traders to mislead or confuse the origin of goods, the two trademarks should be deemed similar (see Supreme Court Decision 2010Do1512, Mar. 14, 2013, etc.).

2. In light of the aforementioned legal principles and the record, “Titts, Sports Shirts, Pourts and uniforms for sports” are designated goods, and the registered trademark of this case (registration number omitted) and “Titiuss, etc.” are used goods, and the challenged mark consisting of the right lines is similar.

A person shall be appointed.

In the transaction of “garment, such as Titts,” which is the designated goods of the registered trademark of this case, it is common to observe and memory the detailed parts of the figure trademark, not accurately observe and memory the detailed parts of the figure trademark, but to observe and memory the whole Matib or dominant impression. As such, based on such ordinary consumers or traders’ direct perception, the appearance of the registered trademark of this case and the marks subject to confirmation are as follows.

두 표장은 모두 ① 원형의 닻고리와 닻장이 서로 붙어 있고, ② 닻고리, 닻장, 닻채가 합쳐져 ‘우’ 자와 같은 모양이며, ③ 닻장의 길이가 갈고리의 끝보다 약간 짧고, ④ 닻줄이 닻고리에서 나와 닻채를 한번 휘감고 돌아 갈고리로 늘어져 있는데 닻줄이 닻채 위를 오른쪽 위에서 왼쪽 아래 방향으로 지나가며, ⑤ 닻채의 아래 끝은 뾰족하고 여기에서 화살표 모양의 끝을 가진 갈고리가 약 45도 상향으로 좌우로 대칭되게 올라가 있는데 닻채 아래 끝과 갈고리의 밑변이 유선형으로 되어 있어서 전체적인 구성과 거기에서 주는 지배적 인상이 극히 유사하다. 다만 두 표장은 ㉮ 닻줄이 휘감긴 구체적 형상과 닻줄 자체의 굵기, 닻고리 내부의 일부가 비어 있는지 여부, 갈고리가 닻채보다 굵은지 여부, ㉯ 색채의 유무, ㉰ 오른쪽 갈고리 부분에 영문 필기체 문자의 유무 등에서 차이가 있으나, 이는 이격적 관찰로는 거의 파악할 수 없을 정도의 세부적인 것들이거나 일반 수요자나 거래자의 인상에 남기 어려운 것들이다.

As such, if two marks are used together with the same or similar goods because the dominant impression of their appearance is similar, they may cause general consumers or traders to mislead or confuse the origin of the goods.

Meanwhile, according to the records, on January 27, 201, at the time of the instant trial decision, several diagrams trademarks with anchored anchor diagrams as designated goods are registered as “Class”. As such, in the case where several types of diagrams trademarks are registered on the product category, consumers or traders pay more attention at the time of the transaction of goods, and the possibility of misconception and confusion as to the source may be reduced, which may be considered as one of the transaction practices for the determination of similarity of trademarks. However, even if considering these circumstances, the trademark of this case and the marks subject to confirmation are extremely similar, as seen earlier, as long as the dominant increase in the appearance of the marks subject to confirmation is extremely similar.

Nevertheless, the court below judged that the registered trademark of this case and the challenged mark are similar to one caused by the occurrence of the above and the mark, and thus, the court below erred by misapprehending the legal principles on determining the similarity of trademarks, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)