A. Criteria for determining the same kind of designated goods

(b) Whether “a remote area”, which is the designated goods of the applied trademark, and “breaths, inner suspension, liners, paper-types, cremation, etc.”, which are the designated goods of the cited trademark, constitute similar goods under the Trademark Act (negative);

A. The applicant trademark is identical with or similar to the registered trademark based on the earlier application, but can obtain registration if it is not a trademark used for goods identical with or similar to the designated goods of the registered trademark. The similarity of the designated goods should be determined depending on whether it is likely to be mistaken or confused in light of the trade norms in consideration of the quality, shape, use, transaction situation, etc. of the goods. It cannot be readily concluded that the trademark falls under the same kind of goods in the list of goods in accordance with the Enforcement Rule of the Trademark Act.

B. Even if remote areas, designated goods of the applied trademark, and business suspension, inner suspension, liners, paper-types, and cremation, which are designated goods of the cited trademark, belong to different kinds of paper, such as the classification of goods under the Enforcement Rule of the Trademark Act, it cannot be viewed as similar goods in light of the use, shape, transaction circumstances, etc. of each product.

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

A. Supreme Court Decision 90Hu1178 delivered on March 27, 1991 (Gong1991, 1289) 91Hu1793 delivered on May 12, 1992 (Gong1992, 1867) 91Hu1687 delivered on May 12, 1992 and 1694 (merged) (Gong192, 1865)

Attorney Ansan-gu et al., Counsel for the defendant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 90Na1472 dated December 27, 1991

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

According to Article 9(1)7 of the former Trademark Act (amended by Act No. 1350, Jan. 13, 1990) as to the grounds of appeal by the applicant’s attorney, a trademark identical or similar to a registered trademark based on an earlier application and used for goods identical or similar to the designated goods of the registered trademark shall not be registered. Thus, even if a trademark is identical or similar to a registered trademark based on an earlier application and used for goods identical or similar to the designated goods of the registered trademark, the applicant can obtain registration if the trademark is not a trademark used for goods identical or similar to the designated goods of the registered trademark. On the other hand, whether the designated goods are similar to the designated goods should be determined depending on whether they are erroneous or likely to be confused in light of trade norms, taking into account the quality, shape, use, transaction situation, etc. of the goods, and the goods of the same kind under the Enforcement Rule of the Trademark Act can not be determined as the same or similar goods (see Supreme Court Decision 85Hu113, Feb. 16, 1987; 89Hu190

[Reference]

For its reasons, the decision of the court below was justified in finding the designated goods of this case as similar goods in light of the legal principles as to goods of this case where the designated goods of this case belong to remote areas as goods of this case, and the designated goods of this case are identical to those of this case, and two trademarks are identical or similar to those of this case in the overall name, appearance, and concept, and the designated goods of two trademarks belong to the same category as the designated goods of this case, and general consumers or traders are recognized as being produced by the same kind of business. However, the decision of the court below was just in finding that the designated goods of this case belong to different kind of goods of this case as goods of this case. However, even though the designated goods of two trademarks belong to different kind of goods of this case, such as the classification of goods of this case under the Enforcement Rule of the Trademark Act, the remaining designated goods of this case are not identical to those of this case, and thus, the decision of the court below is not erroneous in the misapprehension of legal principles as to goods of this case.

It is so decided as per Disposition by the assent of all participating Justices on the bench that the decision of the court below is reversed and the case is remanded to the Korean Intellectual Property Tribunal.

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho