The case holding that, as designated goods, motor vehicle gas diskettes, motor vehicle hedging gas pockets, engines for motor vehicles and electric vehicles, helicopterss, internal combustion engines, passenger boats, escalators, etc. are not similar goods under Article 7 (1) 7 of the Trademark Act in light of trade norms.

The designated goods of the applied trademark belong to Category 5 of the classification of goods under the Enforcement Rule of the Trademark Act, which are gas diskettes for motor vehicles, Hd gas diskettes for motor vehicles, engine gas diskettes for motor vehicles, and the designated goods of the cited trademark belong to Category 37 category 5 of the product classification under the Trademark Act. The designated goods of the cited trademark belong to Class 1 through 6 of the previous, health helicopters, bicycles, internal combustion engines, passenger trains, escalators, escalators, elevators (limited to the previous ones belonging to Class 5 of the designated goods of the applied trademark), the designated goods of the applied trademark are the same kind, and the ‘motor vehicle gas pockets, etc. among the designated goods of the cited trademark, the designated goods of the applied trademark are related to the finished goods of the same group, but the cited trademark is merely parts of the motor vehicle, and in the context of the manufacturer, it is extremely similar to those of the manufacturer's trademark in terms of transportation machinery, etc., and it is extremely similar to those of the manufacturer's trademark in terms of the quality of the designated goods.

Article 7 (1) 7 of the Trademark Act

Supreme Court Decision 94Hu1435 delivered on November 25, 1994 (Gong1995Sang, 114) Supreme Court Decision 93Hu1285 delivered on December 2, 1994 (Gong1995Sang, 492) Supreme Court Decision 97Hu1382 delivered on May 15, 1998 (Gong198Sang, 1634)

Applicant (Patent Attorney Ansan-chul, Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Tribunal Decision 96Na193 dated April 30, 1997

The original decision is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are examined.

According to the reasoning of the decision of the court below, the court below determined that the trademark applied in this case (hereinafter referred to as the "original trademark") on September 27, 1994 and the cited trademark registered by an earlier application (registration number omitted) are similar trademarks since the appearance is different from one another, or the name and concept are same as "beneficiary". The designated goods of the original trademark are Class 5 of the classification of goods under the Enforcement Rule of the Trademark Act. Of the cited trademark's designated goods, the 5th group are the same, while the 4th group is different, and the internal engine difference is different from the 4th group, and these designated goods are related to the finished goods in transportation, and the manufacturer of the previous or internal engine vehicle is the finished goods of the original trademark, which are the designated goods of the original trademark, and it is reasonable that the manufacturer or the manufacturer or the manufacturer of the engines is the same as the finished goods of the latter and the manufacturer or the manufacturer or the user of the gas pocket is also the same as the finished goods of the former and the manufacturer or the user of the latter are not identical to the former.

However, even if the applied trademark is identical or similar to the cited trademark, it does not constitute a trademark that cannot be registered under the Trademark Act unless it is used for the designated goods identical or similar to the cited trademark's designated goods. The classification of goods under Article 10 (1) of the Trademark Act and Article 6 (1) of the Enforcement Rule of the same Act is classified for the convenience of trademark registration and does not define the similarity scope of goods (Article 10 (2) of the Trademark Act). Thus, just because it belongs to the same kind of goods as the classification of goods, it cannot be concluded that the designated goods are identical or similar goods immediately. The determination of the same or similar designated goods shall be made in accordance with the general transaction norms by taking into account the actual circumstances of the transaction, such as quality, shape, use and production, sales sector, scope of consumers, etc. (see, e.g., Supreme Court Decisions 94Hu1435, Nov. 25, 1994; 93Hu1285, Dec. 2, 1994).

According to the records, the designated goods of this original trademark belong to Category 5 of the classification of goods under the Enforcement Rule of the Trademark Act, which are motor vehicle gas diskettes, motor vehicle Hd gas diskettes, engine gas pockets for motor vehicles, and the designated goods of the cited trademark belong to Category 37 category 5 of the product classification under the Trademark Act, and belong to Class 37 category 1 through 6 as electric vehicles, helicopters, bicycles, internal combustion engines, passenger trains, escalators, elevators (those belonging to Class 5 of the designated goods of the personal trademark). Of the designated goods of this original trademark, the "motor vehicle pockets, etc." among the designated goods of the cited trademark are the same category as the designated goods of the original trademark, but on the designated goods of the same group, the cited trademark is merely merely a part for the motor vehicle, and in terms of the transportation machinery itself, it is extremely different from the motor vehicle manufacturer's trademark in terms of transportation machinery, and it is extremely similar to those of the manufacturer's trademark in terms of the type of the vessel, railway, etc., and the seller's sale of the two goods are not easily.

Nevertheless, the court below determined that the designated goods of both trademarks are identical or similar to each other. Such decision of the court below contains an error of law by misunderstanding the legal principles as to similar goods under the Trademark Act or failing to exhaust all necessary deliberations, and it is obvious that such an error has influenced the result of the decision, and the appeal pointing this out is with merit.

Therefore, the decision of the court below shall be reversed, and the case shall be remanded to the Korean Intellectual Property Office corresponding to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)