[1] Whether or not the cited marks consisting of the registered service mark “benz diagrams similar to benz figure” + “Unsil construction” and the benz figure (negative)

[2] The case holding that "automobile, construction site equipment and designated service business, which are the designated goods of the cited marks," and "financial business, which are the designated service business of the registered service marks, are not similar in terms of the housing site construction business and transaction common sense

[3] The case holding that a registered service mark is not registered in violation of Article 7 (1) 10 of the Trademark Act on the ground that the cited mark consisting solely of the benz figure is not a well-known mark

[4] Whether Article 7 (1) 11 of the Trademark Act prohibiting the registration of "a trademark which is likely to mislead a consumer" applies to similar goods (affirmative)

[1] The cited marks of the registered service mark "benz figure + diagrams similar to the fenz figure" and the cited trademarks and the cited service marks of the cited trademarks and the cited service marks, etc. which are registered and applied earlier, are similar to the figure in the shape of the figure. However, the registered service mark is clearly distinguishable from the cited marks since the word "MJ construction" has been marked by the Roman within the figure, and its entire appearance is clearly distinguishable from the cited marks. Even in the name of the title, the registered service mark is referred to as "mar construction" or "marless construction" by the letter portion rather than the figure, but the cited marks are not similar to each other, and they cannot be deemed as similar if they cannot be seen as similar even in terms of concepts.

[2] [1] The designated service business of the registered service mark and the designated service business of the cited marks are different from the classification of goods or service business under the Enforcement Rule of the Trademark Act, as well as the manufacture and sale of goods or service business, and the provision of "housing site construction business, which is the designated service business of the cited trademarks," etc., which is the designated service business of the cited trademarks, are not generally conducted by the same business operator. The designated service business of the cited trademarks is not identical or similar to the designated service mark of the cited trademarks, in the current situation of the use of the designated service business of the designated service mark, the sales of goods or the provision of services, consumers, etc., and the designated service business of the cited trademarks, which is the designated service business of the cited service marks, can not be seen as identical or similar to each other in terms of trade norms.

[3] The case holding that a registered service mark is not registered in violation of Article 7 (1) 10 of the Trademark Act on the ground that the cited mark consisting solely of the benz figure is not a well-known mark

[4] The provision of Article 7 (1) 11 of the Trademark Act prohibiting a trademark "a trademark which is likely to mislead a consumer" shall be applied not only to goods which the trademark has been widely known to the general public, but also to goods which are similar to those which are identical or similar to those of the quoted trademark, if the quoted trademark acquires well-knownness by widely known most of the general public other than the related traders of the goods using the trademark. It shall not be applied only to goods identical or similar to those of the quoted trademark which are used for goods identical or similar to those of the cited trademark.

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act / [3] Article 7 (1) 10 of the Trademark Act / [4] Article 7 (1) 11 of the Trademark Act

[1] Supreme Court Decision 94Hu1800 decided Feb. 10, 1995 (Gong1995Sang, 1339), Supreme Court Decision 95Hu1173 decided Feb. 13, 1996 (Gong1996Sang, 958) / [2] Supreme Court Decision 95Do1770 decided Jun. 11, 1996 (Gong1996Ha, 2258), Supreme Court Decision 97Hu2309 decided Jul. 24, 1998 (Gong198Ha, 2239) / [3] Supreme Court Decision 86Hu21 decided Feb. 24, 198 (Gong1987, 536) decided Feb. 19, 197; Supreme Court Decision 97Hu1979 decided Apr. 16, 197 (Gong1979 decided Apr. 19, 1997)

Mesopha-benz Mebenz. (Patent Attorney Kang Young-young, Counsel for defendant-appellant)

Jin Construction Co.

Korean Intellectual Property Trial Office Decision 95Ra24 dated May 31, 1997

The appeal is dismissed. All costs of appeal are assessed against the claimant.

1. Regarding ground of appeal No. 1

The similarity of trademarks is determined by whether two trademarks used for the same kind of product are likely to cause mistake or confusion as to the origin of the product by observing objectively, comprehensively, and differently from the appearance, name, and concept of the trademark in terms of its appearance, name, and concept. Thus, even if one of the external names, names, and concepts is similar, if it is clearly possible to avoid confusion as to the origin as a whole, it cannot be deemed a similar trademark (see Supreme Court Decision 95Hu57, Jun. 30, 1995).

On January 16, 191, the cited marks such as the registered service mark (registration No. 1 omitted) of this case registered on April 29, 1993 and the cited trademarks (registration No. 1 omitted), the cited trademark (registration No. 2 omitted), the quoted trademark (registration No. 3 omitted), the quoted trademark (registration No. 4 omitted), the quoted trademark (registration No. 5 omitted), the quoted trademark (registration No. 6 omitted), the quoted service mark (1), the quoted service mark (2), the quoted service mark (registration No. 7 omitted), the cited service mark (3), the cited service mark (4) (registration No. 10 omitted), and the cited service mark (registration No. 10 omitted), which are registered on April 29, 1993, are similar in the form of shapes, but the registered service mark of this case is marked "MJ" in the shape of figures, and there is no obvious difference between the cited marks or the cited marks in the entire part "construction without registration" as well as the word "construction without registration".

The judgment of the court below that did not contain improper points in the reasoning of the court below, but that both marks are not similar to each other is justified as a result of the above purport, and it is not erroneous in the misapprehension of legal principles under Article 7 (1) 7 of the Trademark Act as to the similarity of marks as otherwise alleged in the ground of appeal.

Furthermore, the court below determined that the designated service business of the registered service mark of this case and the designated service business of the cited marks are not only different from the classification of goods or service business under the Enforcement Rule of the Trademark Act, but also the manufacture and sale of goods or equipment, etc. used at the construction site of the cited trademarks, and the provision of "housing Site Construction Business," etc., which is the designated service business of the registered service mark of this case, are not generally conducted by the same business operator, but also the designated service business of the cited trademarks of this case is not identical or similar to the designated service mark of this case in the current situation of the designated service business of the cited trademarks, the use of the designated service business of the registered service mark of this case, the selling of goods or the provision of services, and the transaction of consumers such as the designated service mark of the cited trademarks, and the designated service business of the registered service mark of this case, which is the designated service business of the cited service mark, can not be seen as identical or similar

In light of the records, the above decision of the court below is just, and there is no error of law by misapprehending the legal principles under Article 7 (1) 7 of the Trademark Act as to the similarity of goods with service business as otherwise alleged in the ground of appeal.

The first ground for appeal is without merit or acceptable.

2. Regarding ground of appeal No. 2

In light of the cited marks’ use, supply and business activities in the Republic of Korea, the period, method, mode, trade scope, etc. of advertisement and publicity, the cited marks cannot be denied as well as their famous marks, but they cannot be deemed as well-known marks, since the cited marks are registered in various countries around the world and are well-known and well-known in other countries, it cannot be readily concluded that the cited marks are widely known and well-known to general consumers in the Republic of Korea. Furthermore, the registered service marks of this case cannot be deemed as trademarks similar to the cited marks, and the registered service marks of this case cannot be deemed as trademarks similar to the cited marks, and the registered service marks of this case are recognized as having a similar figure in comparison with the cited marks. However, in the composition of the registered service marks of this case, the registered service marks of this case may be deemed as being named and conceptualized by this part in the trade society with a remarkable distinctive character, and thus, it cannot be said that there is a violation of Article 10(1)7 of the Trademark Act.

In light of the records, as a trademark with the title of "benz" in relation to automobiles, it is recognized that the facts have been remarkably recognized to ordinary consumers in the Republic of Korea. However, the evidence submitted by the claimant alone cannot be readily concluded that the cited mark itself is a mark related to the motor vehicle of "benz" and is a well-known mark widely known in the Republic of Korea. Therefore, the above judgment of the court below is just, and there is no violation of the rules of evidence as pointed out in the second argument in the grounds of appeal.

3. Regarding ground of appeal No. 3

The provision of Article 7 (1) 11 of the Trademark Act prohibiting a trademark from being registered as "a trademark which is likely to mislead a consumer" shall be applied only to goods which the trademark is widely known to the general public, or goods similar thereto, as well as goods which are similar thereto, if the cited trademark obtains well-knownness by being widely known to the general public other than the related traders of goods using the trademark. It shall not be applied only to goods identical or similar to the quoted trademark used for goods identical or similar to goods using the cited trademark (see Supreme Court Decision 97Hu228, Nov. 28, 1997).

The court below is erroneous in holding that the above provision is applicable only where the registered service mark of this case is identical or similar to the cited mark and the designated service business of the registered service mark of this case is identical or similar to the cited mark, regardless of whether the cited mark obtained the well-knownness, and the above provision can only be applied to the case where the registered service mark of this case is identical or similar to the cited mark and the designated service business of the registered service mark of this case is identical or similar to the cited mark, unless there are special circumstances, and the above provision can only be applied only to the case where the registered service mark of this case is identical or similar to the cited mark and the designated service business of the registered service mark of this case is identical or similar to the goods using the cited mark or service business of using the cited mark, and the court below's error in holding that the registered service mark of this case is not registered in violation of the above provision is not affected by

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)