205Heo9756 Decision of Refusal (Trademarks)

Rox Rox Rogol Last, Last, Lagol chimar Lad.)

Completion

Representative

Patent Attorney Lee Jae-in, Counsel for the plaintiff-appellant

The Commissioner of the Korean Intellectual Property Office

At least a litigation performer;

March 23, 2006

April 6, 2006

1. The decision made by the Intellectual Property Tribunal on October 20, 2005 on the case No. 2005 Won2575 shall be revoked.

2. The costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. The grounds for the trial decision regarding the plaintiff's decision to refuse the application for trademark registration;

[Evidence] Each entry of Gap 1 to 4

A. Details of the applied trademark of this case and the prior registered trademark (1) Plaintiff’s applied trademark

(1) Composition: LOGITECH "(2) filing date: April 16, 2004.

(3) Application number: 40 – 2004 - 17075

④ Designated goods: Telecommunications machinery and appliances falling under Category 9 of Article 6(1) of the Enforcement Rule of the Trademark Act (whether or not the designated goods are identical or similar to this case, and not listed) including telecommunications equipment and appliances falling under Category 9 of the classification of goods under Article 6(1) of the Enforcement Rule of the Trademark Act (2).

(1) Composition: “B Registration Number: No. 477408.

(3) Date of application / Date of registration: July 10, 1999/ September 22, 200.

(4) Right holder: ELV Telecom

(5) Designated goods: optical fiber cable, cable, satellite, portable communications machinery or apparatus, vehicle-based telecommunications machinery or apparatus, telecommunications server, or self-tele card.

B. On April 6, 2005, the Korean Intellectual Property Office rendered a decision to refuse trademark registration on the ground that the applicant’s trademark application is similar to the prior registered trademark and the designated goods also constitute Article 7(1)7 of the Trademark Act.

(2) The Plaintiff asserted that the applied trademark cannot be deemed as a trademark similar to both the prior registered trademark and its appearance, name, and concept; thus, it does not fall under Article 7(1)7 of the Trademark Act, and filed a request for a trial against the aforementioned decision of refusal with the Intellectual Property Tribunal. (3) The Korean Intellectual Property Tribunal dismissed the Plaintiff’s request for a trial on the ground that (a) compared with the prior registered trademark on October 205, 200, the applicant’s trademark “OGI” as a main distinctive feature in comparison with the prior registered trademark, is the same as the prior registered trademark’s name; and (b) the designated goods are similar to those related to the telecommunications equipment, and thus, fall under Article 7(1)7 of the Trademark Act.

2. Issues of the instant case

The issues of this case are whether the applicant trademark is similar to the prior registered trademark, and the arguments of the parties on this issue are as follows.

A. Summary of the plaintiff's ground for revocation

In the application trademark "OGITH" is an integrally integrated trademark consisting of eight alpha of English alpha, and its title as a whole, is consistent with the language habits of ordinary consumers and natural and general consumers, rather than referring only to the name, as a whole. Therefore, the applied trademark is called "rox" or "roxec" as a whole, so it cannot be deemed as a similar trademark, different from its title, as a whole.

B. Summary of the defendant's motion to maintain the trial decision

The patent applied trademark “TECH” is a summary of techlogy or techn, with the intent of “TECH” or “technical”, and it is difficult to deem that the trademark falls under the technical mark related to the goods related to electronic communications, which are the designated goods. Therefore, the main part of the trademark applied for registration, which is a distinctive feature, is called “LOGI,” but this is called “the same as the prior registered trademark.” Therefore, the trademark applied for registration is a similar trademark, considering that the name of the essential part is the same as that of the prior registered trademark.

3. Whether the applied trademark is similar to the prior registered trademark;

A. The principle of total observation is used to distinguish goods from other goods to prevent the misunderstanding and confusion in the source of goods. The function of a trademark is to ensure the similarity of trademarks is to be determined by observing the trademark as a whole and comparing its appearance, name, and concept. Of the trademarks, the so-called "the so-called essential observation that determines similarity by extracting an essential part with central distinctive character and comparing two trademarks shall be performed only when necessary as a supplementary means to induce the conclusion of the "total observation" (Supreme Court Decision 1994 delivered on 194).

5. 24. See Supreme Court Decision 94Hu265 delivered on April 24, 200

(b) preparation for the title of two trademarks;

The plaintiff's applied trademark "LGITH combines eight persons in English alpha, an alpha, in the form of a trademark without a horizontal line, and it is merely 3 to 4 in the case of an ordinary consumer in the form of English, depending on the tendency of the ordinary consumer in the form of English language, and it is reasonable to view that ordinary consumers are easy to call the applied trademark with "rox" or "rox" as a whole.

As the defendant's assertion, we affirm that if only "TEH" which is generated from "TGITH" or "TH" is viewed separately, it is merely the abbreviation of "technology or technical", and thus, its distinctiveness is weak. However, when ordinary consumers call for a trademark applied for registration, they rather follow the word "TTH I" or "TH" after removing the part generated from "TTH" or "TH". Therefore, comparing the similarity between "OGI" and "OGI" in the applied trademark can not be permitted because it is inappropriate to compare the similarity between the applied trademark and the pre-registered trademark as "an abuse of essential observation" and "the overall observation of the similarity between the trademark and the pre-registered trademark.

On the other hand, the prior registered trademark is called "ropoly named as a word trademark with two letters in Korean street, which is a word "ropoly named as it is".

C. Sub-committee

Therefore, the name of the applied trademark and the pre-registered trademark is not similar. In addition, two trademarks are completely different from their English and Korean, and no concept is similar as a pre-registered trademark with no special meaning.

4. Conclusion

Therefore, since the trademark applied for registration cannot be deemed as a trademark similar to the prior registered trademark, it does not fall under Article 7 (1) 7 of the Trademark Act, and thus, the trademark registration shall be granted, and a different conclusion shall be revoked in an unlawful manner. Therefore, as the plaintiff's claim is well-grounded, it is so decided as per Disposition by admitting it.

Judges Cho Jae-ho

Judges Doing-type

Judges Park Jong-won