The case holding that although the designated service business of "the above cited service mark" and "the above cited service mark" are identical or similar to each other, since the overall appearance and title of both service marks are different, it is not likely to cause mistake or confusion as to the source of the service, even if both service marks are used together, even if they are used together.

Since it is always difficult to find the figure portion at the upper end of the registered service mark "," it is called only by Korean language part at the bottom, and the cited service mark "Korean Council members" consists of two combinations: "Korea" and "Korean Medical Center", but the quoted service mark consists of two combinations, "Korea" and "Korean Medical Center", and it is often used as a personal name and master, and it can be recognized that general enterprises or organizations including hospitals also use it as a common name and master, or a mutual name, as it is difficult to find the range of the figure portion at the top end of the registered service mark as well as that at the same time, there is no distinctive character that can independently indicate the source of the designated service mark, and even if the cited service mark "Korean Council members" and the cited service mark "Korean Medical Center members" are different from the service mark at the same time from the service mark at the same time, it is not possible to cite the whole service mark as "Korean Medical Center members" and the service mark at the same time as "Korean Medical Center members" are different from each other service marks.

Article 7 (1) 7 of the Trademark Act

Kim Jong-soo (Patent Attorney Park Jong-soo, Counsel for the defendant-appellant)

higher (Patent Attorney Jeon-dae et al., Counsel for defendant)

January 9, 2004

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on September 30, 2003 on the case No. 2002Da31777 shall be revoked.

1. Basic facts

[Evidence: Descriptions of Evidence A1 to 4]

A. Registered service mark of this case

(a) Registration number: No. 78294;

(b) Right holder: Defendant;

(3) Date of application/registration: February 5, 2001/ August 12, 2002

(4) Marks:

(5) Designated service business: Article 6(2) [Attachment 2] of the former Enforcement Rule of the Trademark Act (amended by Ordinance of the Ministry of Commerce, Industry and Energy No. 146 of December 24, 2001) / [Attachment 2] Article 6(2) [Attachment 35] of the service industry classification; data manufacturing; data processing; data processing; data processing; “health management business; health examination; nursing; physical treatment business; hospital business; hospital business; health assistance business; medical equipment leasing business; clinic business; clinic business; sanatorium business; and

B. The cited service marks

(1) A cited service mark 1

(a) Registration number: No. 25161;

(b) Right holder: the plaintiff and Ethicalian

(C) Date of application/registration: March 26, 1993/ October 19, 1994

(d) Marks:

(E) Designated service business: Article 6(2) [Attachment 2] [Attachment 2] of the Enforcement Rule of the former Trademark Act (amended by the Ordinance of the Ministry of Trade, Industry and Energy No. 83 of February 23, 1998) and 112 of the classification of service business (hereinafter “the classification of service business category”);

(2) A cited service mark 2

(a) Registration number: No. 31379;

(b) Right holder: the plaintiff and Ethro;

(C) Date of application/registration: July 29, 1994/ May 17, 1996

(d) Marks:

(e) Designated service business: Medical clinic business, hospital business, clinical medical service business, physical therapy business, pharmaceutical research service business, pharmaceutical research business, medical examination service business, pharmaceutical sales brokerage business, nursing facility business, sanatorium business, medical care facility leasing business, medical and health equipment.

C. Details of the instant trial decision

The Plaintiff filed for a registration invalidation trial against the Defendant, asserting that the Defendant’s registered service mark of this case is identical or similar to the cited service mark, which is the prior registered service mark of the Plaintiff, etc., and that the part of the designated service is identical or similar to the designated service mark of the cited service, and that the registered service mark of this case is registered in violation of Article 7(1)7 of the Trademark Act, and its registration should be invalidated in relation to the part of Class 42 of the designated service, and thus, the registered service mark of this case was registered in violation of Article 7(1)7 of the Trademark Act. The Korean Intellectual Property Tribunal deliberated on it as 200Da3177, Sept. 30, 2003.

D. Summary of the grounds for the instant trial decision

The registered service mark of this case is a service mark composed of a combination of diagrams and letters, and it can be divided into two parts or letters, so it is not indivisible enough to separate and observe each part. However, it is difficult to see that 'us', the part of which is the letter, has function of indicating the source of its own service as a master master, who is often used in the transaction market and daily life, and it is often used in the hospital business to which the designated service belongs, which refers to one's own hospital. Thus, in comparison with the registered service mark of this case with the cited service mark of this case, the two service marks are remarkably different in appearance, and the registered service mark of this case will be called and conceptualized only as 'us', and the quoted service marks will be called as 'Korean won', 'Korean oriental medical hospital', and so even if the registered service mark of this case is used independently in the transaction market and daily life, it does not constitute the same service mark as the registered service mark of this case and the designated service mark of this case.

2. The parties' assertion on the legitimacy of the instant trial decision

A. Grounds for revocation of the Plaintiff’s trial decision

(1) Although the registered service mark of this case and the cited service mark of this case are not similar in their appearance, they cannot think of any other name than us, which is the text part, and since the cited service mark of this case can only be seen as an essential part, excluding 'wons indicating the type of business' and 'Korea', both service marks are similar in their names and concepts. Thus, both service marks are similar in entirety to 'Korean Council' and 'Korean Medical Center', even if both service marks are identical in 'Korean Council' and 'Korean Medical Center', they are similar in their overall names and concepts.

(2) The cited service mark is only composed of non-distinctive parts of the cited service mark, and even if there exist grounds for invalidation of registration, so long as the cited service mark remains valid as it is currently registered service mark, the cited service mark constitutes “ another person’s registered trademark by prior application under Article 7(1)7 of the Trademark Act.”

B. Defendant’s assertion

(1) Of the instant registered service marks and cited service marks, the phrase “us” or “us” cannot be separately viewed as an essential part, and there is no distinctive character as a personal master commonly used in daily life with ordinary enterprises, organizations, medical industry, trade names, etc.

(2) The registered service mark of this case has distinctive character on figures and figures, and the cited service mark has to always be observed on the basis of the mark as a whole, because it is difficult to recognize independent distinctive distinctiveness respectively from the part of ‘Korea' and ‘Korea Medical Center' and ‘Korea Medical Center'. The two service marks are service marks that are not similar as a whole, depending on their colors, whether or not they are in color, whether they are in letter, and the number of letters.

(3) Since the registered service mark of this case has been widely known to ordinary consumers and traders in the trade market, there is no concern for misconception and confusion about the source of service business in relation to the cited service mark.

3. Determination on the legitimacy of the instant trial decision

A. Whether the registered service mark of this case constitutes Article 7(1)7 of the Trademark Act

(1) Criteria for determination

Whether a service mark is similar or not shall be determined by whether there is a concern for general consumers or traders to mislead or confuse the source of the service mark, on the basis of a direct perception that ordinary consumers or traders feel about the service mark, by objectively, comprehensively, and separately observing the appearance, name, and concept of the two service marks used for the same service business. The combined service mark shall always be called, conceptually, and conceptually defined and conceptually defined by only a part of the constituent parts, unless it is an indivisible combination to the extent that it is not natural if the respective constituent parts are separately observationd to the extent that they are not natural. However, if each constituent part has no or weak distinctiveness that is able to distinguish the independent service business, each constituent part cannot be independent part, and in principle, its appearance, name and concept shall be observed as a whole, and its appearance shall be compared and reviewed.

(2) Whether the registered service mark of this case and the cited service mark are similar

The registered service mark of this case consists of a combination of two shapes similar to the original shape and div, div, dial combinations with the shapes similar to the C/C. The cited service mark 1 consists of Korean “Korean Council members,” and the quoted service mark 2 is composed of Korean “Korean herb Bank,” and thus, the overall appearance of both service marks is entirely different.

With respect to the name and concept of this case, since it is difficult to find the figure portion above the upper part of the registered service mark of this case, it is always called 'us' by the bottom part, and the cited service mark 1 consists of 'us' and 'the cited service mark 2' respectively, but 'us' consists of 'us' and 'the cited service mark 'the cited service mark 1', 'the cited service mark 'the cited service mark 2' and 'the cited service mark 'the cited service mark 'the whole service mark 'the cited service mark 'the whole service mark 'the whole service mark 'the well-known service mark 'the whole service mark 'the well-known service mark 'the whole service mark 'the well-known' and 'the whole service mark 'the whole service mark 'the well-known service mark 'the whole service mark 'the well-known' and 'the whole service mark 'the whole service mark 'the whole service mark 'the whole service mark ' can not be used '. '.

(3) Whether the designated service business is similar

The designated services of both service marks are all related to medical treatment and health, and their contents, kinds, quality, supplier, service route, and consumer scope are identical or similar to each other.

(4) Therefore, the instant registered service mark and the cited service mark are identical or similar to each other, but their overall appearance and name are different. Thus, even if both service marks are used together, insofar as there is no possibility of causing mistake or confusion as to the source of the service, the instant registered service mark does not fall under Article 7(1)7 of the Trademark Act.

B. Judgment on the plaintiff's other assertion

(1) The case holding that although the plaintiff asserted that the registered service mark of this case and the cited service mark of this case and the cited service mark of this case are used for the purpose of indicating the source of service business, since they are not merely used as a personal name but also used as a word indicating the source of service business, they are already registered by the Korean Intellectual Property Office, and that the registration application of the service mark of this case and the cited service mark of this case and the cited service mark of this case, which are composed of "Korea Hospital" or "Korea Council members", are similar to the cited service mark, the plaintiff's assertion that they are identical to that of the cited service mark of this case and the cited service mark of this case and the registered service mark of this case and the cited service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case and the registered service mark of this case of this case are no more than 1 or 6 service mark of this case.

(2) In addition, in the procedure of applying for the registration of a service mark of another person, including the word “us’s dental services,” the Defendant alleged to the effect that the part of “the value of the registered service mark of this case” indicates the type of the designated service business, so it is highly probable that it will be abbreviationd only with “us,” and thus, if it exists in the transaction market together, it is highly likely to mislead or confuse the source of the service business.” Thus, the Defendant’s argument in this case to the different purport is contrary to the doctrine of gold-competing, but the composition of the service mark applied for registration by another person is different from the composition of “the registered service mark of this case and the cited service mark of this case,” and therefore, the Defendant’s assertion in this case cannot be deemed to be contrary to the doctrine of gold-competing, as it is partly different from the Defendant’s assertion in the procedure of filing the objection.

C. Sub-committee

Therefore, the defendant's registered service mark of this case does not correspond to Article 7 (1) 7 of the Trademark Act because the registered service mark of this case is identical or similar to the prior registered service mark. Thus, the decision of this case is justified.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Yong-ho (Presiding Judge)