[1] The case holding that the trademark "ALFREDO VERSACE" is likely to mislead or confuse the source of goods because the trademark "GINNI VERAE" and the trademark and the designated goods are similar to those of the cited trademark

[2] Relationship between personal rights and freedom of use of name trademark

[3] The elements for recognizing that there is no possibility for consumers to mislead or confuse the quality or origin of goods by taking into account the general trade practice even if two trademarks appear similar

[1] The case holding that if the registered trademark "ALFRED VISACE" and the cited trademark "GINNNVIVISACE" are similar to each other, they are identical to each other, and since most of the designated goods are overlapping, they may cause general consumers or traders to mislead or confuse the source of goods if they are used together.

[2] Since the name of a natural person is based on the recognition of human identity and dignity, it should be guaranteed free use within a broad range as possible in terms of the exercise of personal rights. However, in a case where it is used as a trademark as a mark identifying one's own goods from the transactional world and has the character of property right, the use of the trademark can be restricted within a certain scope for protecting the interests of consumers, i.e., another legal interest that the Trademark Act intends to protect together with the maintenance of business credit of a trademark user.

[3] Even if the two trademarks are similar to each other in their external appearance, name, and concept, they are deemed similar in general, abstract, and periodically to each other, in light of the general transaction situation surrounding the goods in question, i.e., the nature of the market, the degree of financial ability or knowledge of customer floor, whether they are experts, age, gender, nature of the goods in question, place of transaction and transaction method, whether they are after management of the goods in question, the place of transaction, the present and use of the trademark in question, the degree of awareness of the trademark in question, the consumer’s daily language life, etc., in a trade society, if there is no possibility that consumers mistake or confuse the quality or origin of the goods in a specific and individual manner, such trademark can be deemed not to be a trademark in question. However, in order to maintain the basic character as a mark law with the Trademark Act, and to promote legal stability necessary for the operation of the trademark system, such exceptional circumstance should be limited to cases where it seems that there is no obstacle to the protection of consumers and traders.

[1] [1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act, Article 7 (1) 7 of the Trademark Act

[3] Supreme Court Decision 95Hu1821 delivered on July 30, 1996 (Gong1996Ha, 2670), Supreme Court Decision 96Hu153 delivered on September 24, 1996 (Gong1996Ha, 3201), Supreme Court Decision 97Hu594 delivered on October 10, 1997 (Gong1997Ha, 3462), Supreme Court Decision 99Hu2532 delivered on January 21, 200 (Gong200Sang, 491)

almor Memor (Attorneys Song Young-sik et al., Counsel for the defendant-appellant)

Nais Medi Haba L.P. (Law Firm Haba, Attorneys Choi Ho-ro et al., Counsel for the plaintiff-appellant-appellant)

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on each relevant trial case on the date of the trial decision listed in attached Table 1 shall be revoked.

1. Details of the instant trial decision

[Ground for recognition] Gap's 1-2, Gap's 2, Gap's 9-3, Gap's 9-5 through 10, 12, Gap's 89-1 through 6, Eul's 1-1, 2, Eul's 62, 65 through 68, Eul's 70, 75, and 100, and there is no dispute

A. The instant registered trademarks and cited trademarks

(1) The registered trademarks of this case

The plaintiff's registered trademarks of this case are as shown in the attached Table 2, 1, a position treated as sound.

Within a rectangular figure, the source surrounding the "V" shall be placed, and the English letters shall be placed on the top thereof.

“DESIGNDBY” and at the bottom of “ALFRED VISACEE”

The above trademarks (hereinafter referred to as the "trademark A of this case"), 2. The shape of the project shall be placed on the left-hand side, and on the right-hand side of the project, the "Af credit" of English characters, written on the right-hand side of the project.

The phrase “VERSACE” written in the form of a printed body in the upper part of the printed body shall be deemed to be the same.

Trademark B is a trademark (hereinafter referred to as "instant registered trademark B").

(2) The cited trademarks

The defendant's cited trademarks are as shown in the attached Table 3, ① the trademark identical to the trademark "" (hereinafter referred to as "human trademark A"), and ② the English letters, consisting only of the Vantantsace of the English letters.

"GININI VERSACE" consisting of a cross or upper part of the area.

GINI

VERSACE or "E" (hereinafter referred to as "human trademark B").

VERSACE

(b) A petition for nullification of registration and trial decision;

Since the trademark of this case is similar to the cited trademark which is the well-known and well-known and well-known trademark whose earlier application was registered, the defendant filed a petition for the invalidation trial of the trademark of this case by asserting that if the trademark of this case is used on the designated goods, it would cause mistake and confusion about the source as it is the defendant's goods, and that the trademark of this case should be invalidated as it falls under Article 7 (1) 7, 9, and 11 of the Trademark Act, and the Korean Intellectual Property Tribunal deliberated on it as each trial case listed in attached Table 1 and rendered the trial decision of this case accepting the defendant's claim on the grounds as follows (c).

C. Summary of the reasoning for the instant trial decision

(1) Whether the registered trademark of this case falls under Article 7 (1) 7 of the Trademark Act

Since the registered trademark of this case is not indivisible to the extent that it is deemed natural if the figure and the English text are separately observed, the part of the English text is recognizable separately from the figure. In other words, the part of the above text is identical to the part of the trademark of this case, which is not merely an additional part without distinctive character, depending on the tendency of the trade society requiring simple and swiftness, with the exception of the remaining part of the trademark of this case, "ALFREO" or "VSACEE". Thus, it is highly recognizable and recognizable only with the latter part of the registered trademark of this case, and it can be seen that the trademark of this case is used as a "beer" only with the latter part of the trademark of this case (it can be known that the domestic licensee of this case uses the registered trademark of this case as a "beer," and since the name and concept of the cited trademark A and the cited trademark of this case are identical to those of the cited trademark of this case, the trademark of this case and the trademark of this case are identical to those of the cited trademark of this case, which are identical to the trademark of this case and its origin.

(2) Whether the trademark of this case constitutes registration number No. 448526 and No. 446308 under Article 7(1)11 of the Trademark Act

Prior to the registration of the instant registered trademark, the cited trademarks obtained trademark registration by using cosmetics, clothing, etc. as designated goods in Isi-ri, the United States, and the Republic of Korea as the designated goods prior to the registration of the instant registered trademark, and the publicity and advertisement of the goods bearing the cited trademark was widely made for the entire world, and on November 30, 1995, the cited trademarks included the cited trademarks in the Foreign Trademark Data Collection issued by the Korean Intellectual Property Office Review Office on November 30, 1995. Thus, the cited trademarks shall be deemed to be well known as a trademark of a specific person between foreign and domestic ordinary consumers or traders. Thus, if the instant registered trademarks are used together for designated goods identical or similar to the cited trademarks, there is a concern for misconception and confusion as to the origin of the goods if they are used together with the designated goods identical or similar to the cited trademarks, the trademark of Articles 448526 and 446308 of the Trademark Act as the designated goods among the instant registered trademarks falls under Article 7(1)11 of the Trademark Act.

(3) Accordingly, since the registered trademark of this case falls under Article 7 (1) 7 or 11 of the Trademark Act, it cannot be exempted from the invalidation of the registration under Article 71 (1) 1 of the Trademark Act.

2. Whether the trial decision of this case is legitimate

A. Grounds for revoking the trial decision of the plaintiff's assertion

(1) Whether the registered trademark of this case constitutes Article 7(1)7 of the Trademark Act

(a)The similarity of trademarks under the Trademark Act shall be determined on the basis of whether there is a concern that the appearance, name, and concept may cause mistake or confusion as to the origin of a product by objectively, comprehensively, and systematically observing the appearance, name, and concept of the trademark used for the like product. Such determination shall be based on ① the time of application for the trademark, ② the overall observation, ③ the specific transaction schedule shall be taken into account, ④ the consumer's attention as to the product in question.

(b)First of all, the determination of similarity of trademarks should be based on the overall observation. The trademark of this case is identical only to the part of the cited trademark, which is commonly used in this Ririly named “VERSACE” or “Versace”, in combination with the distinctive figures of “DESGNDD YD YIDD YISACE” or “Alf credit,” and is considerably different from the cited trademark in combination with the characters of “GINNN VERE” or “Versace.” In addition, the term “ALFDO VSACEE” contained in the text of the trademark of this case, as it is so-called the so-called name trademark made under the name of the Plaintiff who is a DNA, and is perceived and conceptualized as a full-time one, so it is distinguishable from the cited trademark.

However, if the cited trademark acquires the well-knownness in the domestic trade sector by a long-term use, and thus becomes familiar with the general consumers, if the trademark of this case, including the same letter, is likely to be abbreviated only by the "Versace" or the "VERACE", it may be similar to the cited trademark. However, the quoted trademark is only a trademark registration in the Republic of Korea, and there is no sales of the designated goods in the Republic of Korea, and even if there is domestic affairs, there is no significant recognition in the Republic of Korea due to the lack of the sales quantity, and thus, it is not possible that the trademark of this case may be abbreviated only by the "Vace", and thus, the trademark of this case and the cited trademark of this case cannot be deemed a similar trademark.

(c)In addition, in determining the similarity of trademarks, detailed transaction practices should be considered in determining the similarity of trademarks, and if there is no concern for actual mistake or confusion due to the change of demand class, etc., it shall not be considered as similar trademarks even if it is formally similar. The products to which the trademark of this case is attached are sold to the general public across the country among the so-called licensing products manufactured by domestic enterprises with the permission for the use of the trademark from the Plaintiff. However, the Defendant’s products to which the cited trademark of this case is attached are manufactured and imported directly from the Defendant to the Republic of Korea, with the price of 10 times or 20 times compared to the above licensing products, are sold only at the direct sales store in Gangnam-gu Seoul and the exclusive sales stores of some department stores. (1) the products to which the cited trademark of this case is attached, are sold only at the direct sales store in Seoul, Gangnam-gu and the exclusive sales stores of some department stores. (5) The price of the products to which the products are manufactured and sold, and thus, even if the products of this case are used together with the same kind of products.

(2) Whether the registered trademark of this case constitutes Article 7 (1) 11 of the Trademark Act

(a)whether a trademark is well-known or low shall be determined on the basis of ① the degree of distinctiveness of the trademark, ② the period used in combination with the product, ③ the period, scope and mode of advertisement, and ④ the regional scope and distribution route in which the trademark is used.

(b)The trademark for personal use has not been used entirely for 6 to 7 years after the trademark registration was made, and the goods such as clothes, handbags, and flags attached with the cited trademark B were imported in Korea and sold at a store exclusively for department stores in Seoul. Advertising advertisements are also limited to a small number of clothing expertises, and the regional scope of the trademark used is limited to some large cities such as Seoul, Busan, and Daegu, and the products affixed with the cited trademark are known only between a small number of pets as high-priced imported goods, so it cannot be deemed that the cited trademark was known to the extent that it can be perceived as the Defendant’s trademark if the cited trademark is a cited trademark to consumers or traders in general transactions at the time of the decision on the registration of the trademark of this case. Thus, it cannot be deemed that the trademark of this case falls under Article 7(1)11 of the Trademark Act.

B. We examine whether the registered trademark of this case falls under Article 7 (1) 7 of the Trademark Act

(1) Whether a trademark is similar or not should be determined by whether there is a concern for mistake or confusion as to the origin of a trademark when a general consumer or a trader feel a trademark by observing two trademarks used for the same kind of product in terms of external appearance, name, and concept, etc. In addition, the combination trademark consisting of each constituent element of letters, letters, or diagrams is not necessarily called and conceptualized by the entire constituent part, but can be called and conceptualized simply by a part of the constituent part unless it is indivisible to the extent that the separate observation of each constituent element is deemed natural in the trade. In addition, if it is possible to think of two or more names or concepts from one trademark, one of them should be similar if it is deemed identical or similar to another's trademark, and the same applies to a combination of the combined trademark names made by such combinations (see, e.g., Supreme Court Decisions 200Hu2965, Apr. 29, 2905; 2009Hu794, Apr. 29, 2097).

(2) This case’s registered trademark A is composed of letters “V” on the center of the black rectangular figure, and the English letters “DESIGNDBY” and “ALFRED VISACEE” are marked on the upper top of each of the above parts. The instant registered trademark B is on the left side, and the English letters “Alf credit book” and “VVSAE” are written on the right side, and the cited trademark B is also composed of English letters “Versce” and the cited trademark B is also composed of “GNIDVSACEE” and “GE” composed of English letters “GGNDDDVVEE” and “IVIVAEEN 9” are written on the upper top of each of the above parts. On the other hand, there is no dispute between the Plaintiff’s name and the parties to this case’s name and the Plaintiff’s name “IMFNIENIENENIEENENENEEEE” and the Plaintiff’s name and the Plaintiff’s name “IVIVAVAVAVAVEEE.”.

The registered trademark of this case is composed of "VIFREO" or "VINDBY", which corresponds to the plaintiff's name, because it is merely a commercial phrase indicating that it was a design by anyone, and the remaining figure part is composed of "GINI" or "VSACE". The cited trademark B is composed of "GINNI" or "VSAE" which corresponds to the name of the above superdier, and the separate observation of each part is not an indivisible combination to the extent that it is natural in the trade. Accordingly, according to the tendency of the general consumers to name and memory the trademark in a more simple manner, each trademark of this case can be recognized as being separated from each part of each figure and character, and therefore, the trademark of this case can not be recognized as being 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 10, 1, 2, 2, 2, 2, etc.

Thus, in the case where the trademark of this case is referred and conceptualized only by the "beer", it is identical to the cited trademark B, which is called as the "beer", and the quoted trademark A, whose name and concept are called as the "beer". Thus, the registered trademark of this case and the cited trademark of this case are similar to each other when objectively, comprehensively, and qualitatively observe them.

(d)On the other hand, the designated goods of the trademark of this case and each of the cited trademarks are the same kind of goods as those listed in the Schedule 2, 3, as well as those of the same item itself, so these trademarks are similar goods whose quality, shape, use and sale are the characteristics of the goods themselves, and whose scope overlaps with each other.

(5) Accordingly, the registered trademark of this case is likely to cause mistake or confusion as to the origin of the goods if the mark and the designated goods are similar to the cited trademark in the attached Table 3, as shown in the attached Table 3, and thus, it shall be deemed that it falls under Article 7 (1) 7 of the Trademark Act.

(6) However, in the part of the text of the trademark of this case, the Plaintiff asserts that the Plaintiff’s name and the cited trademark B’s name and the cited trademark B’s name and the cited trademark “GININIVVSAE” are recognized and conceptualized as a whole as a trademark indicating a specific person’s product, since the trademark of this case and the cited trademark of this case are so-called “GINNIVVE” in each of these names, and thus, the trademark of this case and the cited trademark of this case can only share only a very sent nature in each of these attitudess, “VSACE,” and there is no possibility to recognize the trademark of this case as a trademark of this case, since the cited trademark B was called “VIFRED” and the cited trademark of this case was not well-known to domestic consumers for a long time, and thus, it cannot be seen as a trademark of this case.

The issue of whether a trademark can be separately observed as one of the methods of determining the similarity of trademarks should be determined on the basis of direct recognition that domestic consumers or traders with common attention report the trademark in the trade situation. Thus, the mere fact that the trademark is derived from a foreign person's name cannot be readily concluded that the outcome part of the trademark can not be separated and observed (see Supreme Court Decision 98Hu2627, Apr. 11, 200). According to the above provision of the registered trademark "ALF REE" or the above provision of the cited trademark "GNIVISAE", and the above provision of the cited trademark "GGN 6OE" has no tendency to separate or separate the trademark from the trademark's name in the domestic market, but it seems that there is no evidence to acknowledge that there is no tendency to separate or separate the trademark from the domestic market's name in the above case's name and its abbreviation 1, which is one of the following reasons.

(7)In addition, the plaintiff asserts that the plaintiff's use of his name as his trademark does not constitute an infringement of the defendant's trademark right since he has the right to use his name as a trade name or trademark on the extension line of his personality right.

Since the name of a natural person is based on the recognition of human identity and dignity, it is necessary to guarantee free use within a broad range as possible in terms of the exercise of personal rights. However, in a case where it is used as a trademark as a mark identifying one's own goods from the transactional world and has the character of property right, it can be restricted to the use of another legal interest that the trademark law intends to protect together with the maintenance of business credit of a trademark user, i.e., the protection of the interests of consumers.

Therefore, even if the registered trademark of this case is made of the Plaintiff’s name, which is an actual co-existence, and the cited trademark, its mark, and the designated goods are similar to the cited trademark, it is likely to cause mistake and confusion as to the source of goods to consumers if they are used together. Thus, as long as such objective circumstance exists, barring any intention of unfair competition as to the application for trademark registration of this case, the registered trademark of this case falls under Article 7(1)7 of the Trademark Act, so the Plaintiff’s assertion is without merit.

(8) Finally, in determining the similarity of trademarks, the Plaintiff should consider the specific business practices in determining the similarity of trademarks, and if there is no concern for actual mistake or confusion due to the change of demand class, etc., even if the appearance, name, and concept of the trademark are similar, it cannot be deemed as a trademark similar to one another. Products to which the trademark of this case is attached are sold at many general stores across the country to the general public throughout the country. On the other hand, the Defendant’s products to which the cited trademark is attached are imported only at the direct sales store in Gangnam-gu Seoul and the exclusive sales store in some department stores. The Defendant’s products to which the cited trademark of this case is attached are sold as the imported products, and are sold only at the exclusive sales store in Seoul, Gangnam-gu and some department stores, and the price is compared with the cited products. The goods with the trademark of this case are limited to 10 to 20 times the leather products, and the clothing products are at least five times the products are sealed by consumers to the extent that they are not likely to cause confusion between the two trademarks and the origin of this case.

However, even if two trademarks seem to be similar in general, abstract, and uniform terms similar to each other in terms of their external appearance, name, and concept, they can be deemed as not a trademark falling under Article 7 (1) 7 of the Trademark Act in a trade society where it is not likely that consumers mistake or confuse the quality or origin of the goods in a specific and individual manner in light of the general transaction situation surrounding the goods in question, i.e., the nature of the market, the degree of financial history or knowledge of customer floor, whether they are experts, age, sex, place and method of trade, place of trade, ex post facto management of the goods in question, whether they are made after the use of the goods in question, the degree of awareness and use of the trademark in question, the relationship with the goods in question, and ordinary language life of consumers, etc. (see Supreme Court Decision 95Hu1821, Jul. 30, 1996; Supreme Court Decision 95Hu1821, Jul. 30, 199).

According to Gap evidence 12-1, 2, and Eul evidence 58's testimony, some of the products of this case were manufactured by domestic enterprises under a license agreement with the plaintiff, and the quoted trademarks are sold across the country. While the defendant's products are directly manufactured from around 1995 to around 197, the defendant's products are directly imported from Gangnam's Cheongdong and New Airport Store, Seoul's Cheongbalian, Daegu Gabalian, Busan Gabalian, and Busan 9's 200's 9's 9's 20's 10's 9's 1's 9's 1's 1's 's ''s 's 's 's 's ''' ''' ''' ''' ''' '' '' '' '' '' '' '' '' '' '' '' '' '' ' ' ''' ' ' '' ' ' ' ''''' ' ' ''' ' ' ' ' '' ' ' '' ' ' ' ' ' '.

In full view of the above facts, there is a difference between the product with which the registered trademark of this case was attached and the product with the cited trademark, and there is a substantial difference in the sales price in the product. However, considering the fact that the clothes products have diversity in their items and prices, it is difficult to conclude that there is no possibility of misconception or confusion as to the quality or origin of the product even though the two trademarks are similar to the designated goods in the trading society, it is difficult to conclude that there is no concern for misconception or confusion as to the quality or origin of the product. Thus, the plaintiff's assertion on this part is without merit.

C. Sub-committee

Therefore, without further determination as to whether the registered trademark of this case falls under Article 7 (1) 7 of the Trademark Act and falls under Article 7 (1) 11 of the same Act, the registration of this case should be invalidated under Article 71 (1) 1 of the same Act. Accordingly, the decision of this case is justified.

3. 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 Gu-Appellee (Presiding Judge)