[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 since the registered trademark "ALFRED VISACE" and the cited trademark "GIVINNVIVISACE" are similar to each other if they are named "GINNNI", and they are also similar to each other, 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 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, 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 though two trademarks seem to be similar in general, abstract, and uniform terms similar to each other in their external appearance, name, and concept, if they are not likely to mislead or confuse consumers as to the quality or origin of the goods in the trading society, such trademarks shall be deemed to be not trademarks falling under Article 7 (1) 7 of the Trademark Act, but in order to maintain the basic character of the mark law with the Trademark Act, and to promote legal stability necessary for the operation of the trademark system, such exceptional circumstances should be limited to cases where it seems that there is no impediment to the protection of consumers and traders, in full view 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 stories, whether they are experts, age, gender, the characteristic of the goods in question, the place of transaction, whether the trademark is in post management and use, the present situation of the trademark, the degree of awareness of the trademark, and ordinary language life of consumers.

[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)

Plaintiff (Attorney Song-sik et al., Counsel for the plaintiff-appellant)

Hui Ba Hui L.P. (Law Firm Mai, 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

[Based on the 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 VERCEE” 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-known-known-known-known-known-known-known-known-known-known-known-known-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered-registered--

C. Summary of the reasoning for the instant trial decision

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

The registered trademark of this case is solely composed of "ALFREO" or "VSACE" and is well-known and recognizable, since it is not indivisible to the extent that it is deemed natural if it is observed separately from the figure and the figure and the figure and the figure are not separated from the figure and thus, it can be recognized separately from the figure. In other words, the part other than the remaining part without distinctive character depending on the tendency of a trade society requiring simple and swiftness, is not only an additional part of "DESGNBY" or "VSACE". Thus, the registered trademark of this case can be seen as identical and confused with the trademark of this case, since it can be seen that the trademark of this case is used by the actual plaintiff 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 used the trademark of this case as a "beer," and since the cited trademark of this case and the cited trademark of this case as well as the trademark of this case are identical and similar to the trademark of this case, the trademark of this case where it is used as an objective and confused.

(2) Whether the trademark of this case constitutes (registration number 1 omitted), (registration number 2 omitted), and (registration number 2 omitted) 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 various 60 countries, such as Thairi, the United States, and the Republic of Korea 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 the cited trademarks were included in the foreign trademark data collection issued by the Korean Intellectual Property Office on November 30, 1995. As such, 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, it may cause misconception and confusion about the origin of the goods if they are used together for the designated goods identical or similar to the cited trademarks, and thus, the trademark (registration No. 1 omitted), among the instant registered trademarks, falls under the provisions of Article 7 (1) 11 of the Trademark Act.

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

(B) First of all, the determination of the similarity of trademarks must 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, and is considerably different from the cited trademarks that are used only in the letters such as “GINNI VERCE” or “Versace.” In addition, the term “ALFREDO VERCEE” contained in the text of the trademark of this case, is a so-called name trademark made in accordance with the name of the Plaintiff who is a DNA, and is perceived and conceptualized as a full-time oneme, so it is obvious that the cited trademark of this case is distinguishable from the cited trademark of this case, and that there is a strong distinction between the parts such as “VERACEE” and the cited trademark of this case.

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 similarity of trademarks, specific transaction practices should be considered in determining similarity of trademarks, and if there is no concern for actual mistake or confusion as to the demand class, etc., even if it is formally similar, it shall not be deemed a similar trademark. The products to which the registered trademark of this case is attached are sold to the general public across the country among the so-called licensing products manufactured by domestic companies 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 and directly in Korea, and are sold only at the direct sales outlet in Gangnam-gu in Seoul and the exclusive sales outlet in some department stores in Seoul because their prices are 10 to 20 times compared with the above licensing products. As such, the Defendant’s products to which the cited trademark of this case is attached are sold only at the exclusive sales outlet in Seoul, Gangnam-gu and the exclusive sales outlet in some department stores in Seoul.

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

(B) The cited trademarks did not have used at all for 6 to 7 years after the trademark registration was made, and around 1996, the clothes, handbags, and flads, etc. 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 clothes, and the regional scope of the cited trademark is limited to some large cities, such as Seoul, Busan, and Daegu, and products with the cited trademark attached are known only between a small number of pets as high-priced imported goods, and thus, 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, the trademark of this case cannot be deemed to fall under Article 7(1)11 of the Trademark Act.

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

(1) Whether a trademark is similar 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 in a transaction observe two trademarks used for the same kind of product in terms of appearance, name, and concept, etc. In addition, if it is recognized that two or more names or concepts are identical or similar to those of another person's trademark, the combination trademark combining each constituent element of letters, letters, or figures is not necessarily called and conceptualized by the entire constituent part, but can be called and conceptualized simply by the part of the constituent part unless it is indivisible to the extent that it is deemed natural in the transaction, upon the separation and observation of each constituent part, if one of them can think of two or more names or concepts from one trademark, and if it is deemed identical or similar to that of the latter's trademark, the two trademarks should be similar (see, e.g., Supreme Court Decisions 200 after 290Hu584, Apr. 29, 2905); and the same applies to the combination trademark name formed by combination.

(2) The instant registered trademark A is placed at the upper end of the English language “V” in the center of the black rectangular figure, and the English language “DESIGNDBY” and “ALFRED VISACEE” are marked at each above top. The instant registered trademark B is placed on the left side, and on the right side, the English language “Alf credit book” and “VSAE” are written on the printed body, and the cited trademark B is also composed of the English language “Versce” and the cited trademark B is also composed of “GNIDVSACEE” and the cited trademark is also indicated as “GGNDDDVVEE” and the Plaintiff’s name “IVIVAENEN 97,” and the Plaintiff’s name “IMFNNNENIENIENENENENIENIENENE” and the Plaintiff’s name “IMFNENENENIENIENENIENENENEENIE” as seen.

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. Thus, 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, 9, 10, 1, 2, 2,

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.

(4) 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 indicated in the separate sheet 2, 3 as shown in the separate sheet 2, and there are many cases where the goods themselves are the same. Accordingly, the designated goods of these trademarks are similar goods that overlap most in quality, shape, use and sale, and the scope of consumers, which are their own characteristics.

(5) Therefore, the registered trademark of this case is likely to cause mistake or confusion as to the origin of the goods if the trademarks, trademarks, and designated goods are similar to the pertinent cited trademarks listed in the attached Table 3, and the trademarks and the designated goods are used together. Thus, Article 7(1)7 of the Trademark Act shall be deemed to fall under Article 7(1)7.

(6) However, in the part of the text of the instant registered trademark, the Plaintiff’s name, “ALFRESACE” or “GININIVIE” or “GININIVICEE” is recognized and conceptualized as a whole, since it is a so-called name trademark that is made in accordance with the name of a designer of the cited trademark B, and thus, it is recognized and conceptualized as a product of a specific person. Thus, the instant registered trademark and the cited trademark B are only sharing only a very sent nature in the solar sense of “VSACE,” and the parts with strong distinctive character are clearly distinguishable from each other. Furthermore, since the cited trademark B is called “B” and the cited trademark has no well-known character for domestic consumers for a long time, it cannot be seen as a trademark of this case as a trademark of this case, i.e., the trademark of this case merely has no possibility to be cited and similar to the instant 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 the name of a foreign country cannot be readily concluded that the name of the trademark cannot be separated and observed (see Supreme Court Decision 98Hu2627, Apr. 11, 200). According to the English characters of the registered trademark "ALF RESAE" or "GLVISAE", the English characters of the cited trademark "GNIVIE" were written in the name of the non-party 1 and most of the domestic consumers or traders of this case's name, which are non-party 2, which are non-party 1, which are non-party 1, whose names are non-party 1, and whose names are non-party 2, which are non-party 1, which are non-party 1, which are non-party 2, each of the above domestic consumers or traders, have no tendency to recognize it.

(7) In addition, the Plaintiff asserts that the Plaintiff’s use of his name as a trademark does not constitute an infringement of the Defendant’s trademark right, even if a similar cited trademark is registered prior to the extension of his/her 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, as seen earlier, even if the Plaintiff’s name, which is an actual co-existence, is made on the basis of the Plaintiff’s name, the cited trademark, its marks, and designated goods, may cause mistake and confusion as to the origin of goods if used together with the consumers. As such, barring such objective circumstance, barring any intention of unfair competition as to the Plaintiff’s application for trademark registration of this case, which is the name trademark, the instant registered trademark 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’s specific business practices should be considered in determining the similarity of trademarks, and if there is no risk of 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. 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 with the cited trademark are sold as the imported products, and are sold only at the exclusive sales outlet 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 5 times the upper part of the consumers’ oil, and thus, products with the trademark attached 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 Nos. 12-1, 2, and 58's testimony of the non-party 3, non-party 1, and non-party 2's testimony, products to which the registered trademark of this case is attached are manufactured by domestic enterprises under a license agreement with the plaintiff, while the defendant's products to which the cited trademark of this case is attached are directly manufactured by the defendant from around 1995 and are directly imported in Korea and around 1997, the defendant's products are included in the Cheongdong-dong store in Gangnam-gu Seoul, Seoul, the galsian department store in Daegu, Busan, and the galsian department store in Busan, and the galsium 9's galsium 20's galsium 9's galsium 20's galsium 1,000's galsium 1,000 won gals price of each of the above products.

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 pursuant to Article 71 (1) 1 of the same Act, and the decision of this case as to this conclusion 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)