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특허법원 2005. 6. 24. 선고 2005허2502 판결
[거절결정(상)] 상고[각공2005.8.10.(24),1337]
Main Issues

[1] In a case where letters that constitute a conspicuous geographical name and contain a different meaning are written only in Korean and a part of a trademark constitutes a trademark, the standard for determining its distinctiveness

[2] In a case where a trademark registered prior to the filing of an application for trademark registration is extinguished by a final and conclusive decision on invalidation of registration, whether the trademark can be a registered trademark of another person by an earlier application under Article 7(1)7 of the Trademark Act (affirmative)

Summary of Judgment

[1] A conspicuous geographical name also falls under a conspicuous geographical name and other meanings together constitute part of a trademark in Korean only, and thus, it cannot be readily concluded that the part does not have distinctiveness. The specific meaning and concept of the trademark used should be individually identified and determined in accordance with the entire composition and context of the trademark.

[2] Article 7 (1) 7 of the Trademark Act provides that "a trademark identical or similar to another person's registered trademark by an earlier application" shall be "a trademark"; Article 7 (1) 8 of the Trademark Act provides that "a trademark identical or similar to another person's registered trademark for which one year has not passed since the date on which the trademark right is extinguished (where a trial decision invalidating a trademark registration has become final and conclusive, referring to the date on which a trial decision becomes final and conclusive)" and the main sentence of Article 7 (3) of the same Act provides that "the provisions of Article 7 (1) 7 and 8 shall apply to a trademark which falls thereunder at the time of the application for trademark registration (where another person's registered trademark becomes null and void under Article 71 (3) of the Trademark Act, such trademark cannot be registered even if another person's trademark right becomes null and void after the application for trademark registration becomes final and conclusive under the circumstances on the applicant's trademark at the time of the application for trademark registration."

[Reference Provisions]

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7, 8, and (3) of the Trademark Act

Reference Cases

[2] Supreme Court Decision 96Hu2067 delivered on May 28, 1997

Plaintiff

Park Jong-soo (Patent Attorney Park Jae-nam, Counsel for the plaintiff-appellant)

Defendant

The Commissioner of the Korean Intellectual Property Office

Conclusion of Pleadings

June 10, 2005

Text

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Purport of claim

The decision made by the Intellectual Property Tribunal on February 18, 2005 on the case No. 2004 Won3487 shall be revoked.

Reasons

1. Basic facts

[Evidence : Evidence of No. 1 to 3, No. 1 to 5]

A. The applied trademark of this case

(1) Application number: No. 2002-30598

(2) Date of application: July 3, 2002

(3) Marks:

(4) Designated goods: The category of goods under [Attachment 1] of Article 6(1) [Attachment 1] of the Enforcement Rule of the Trademark Act 20 'bruds, stone bed, spads, spads, softs, pads

(b) Preregistered trademarks;

(i) the Prior Registered Trademark 1

(a) Registration number: No. 491815;

(B) Date of application/registration: April 20, 1991

(C) Marks:

(D) Person entitled to registration: Head Fisheries Corporation

(E) Designated goods: 'Blux, chair, display site, book, book, box, box, box, box, bit, spons, cremation,' under Article 6 (1) [Attachment 1] of the former Enforcement Rule of the Trademark Act (amended by Ordinance of the Ministry of Commerce, Industry and Energy No. 146 of December 24, 2001) 20 of the classification of goods (hereinafter referred to as "the classification of goods of the former").

(ii) the Prior Registered Trademark 2

(a) Registration number: No. 524177;

(B) Date of application/registration: June 14, 2000/ July 2, 2002

(C) Marks:

(D) Person entitled to registration: Head Fisheries Corporation

(e) Designated goods: Category 20 of the former Product Classification;

(iii) Priorly registered trademark 3

(a) Registration number: No. 50504;

(B) Date of application/registration: June 16, 1999/ October 30, 2001

(C) Marks:

(d) Person entitled to registration: The current operation

(e) Designated goods: 20 category of goods classified into the former product (limited to the products made of a pent stones), ice for non-medical use (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), garris (limited to the products made of a pent stone), arris (limited to the products made of a pent stone), arris (limited to the products made of a pent stone), arris (limited to the products made of

C. Reasons for the decision of refusal and the trial decision of this case

On June 30, 2004, the Korean Intellectual Property Office rendered a decision of refusal by applying Article 7(1)7 of the Trademark Act on the ground that the name and concept of the pre-registered trademark 1 through 3 and the first summary of the trademark are identical or similar to all the designated goods.

Accordingly, on February 18, 2005, the plaintiff filed a petition for a trial seeking the revocation of the above decision of refusal, and the Korean Intellectual Property Trial and Appeal Board tried to dismiss the plaintiff's petition for a trial on the following grounds.

D. Summary of the grounds for the instant trial decision

Examining the similarity between the applied trademark of this case and the prior registered trademark 1 to 3, the trademark of this case can be conceptually named, conceptually named, or conceptually named, ‘the number of pages' or ‘the number of pages' in the shape of North Korea, and the prior registered trademark 1 can be conceptually named, and conceptually named, ‘the number of pages' or ‘the number of pages' other than ‘t stones' in the shape of the designated goods, and the prior registered trademark 2 can be conceptually named, ‘the number of pages' or ‘the similar trademark' other than ‘twelves indicating the quality of the designated goods and the common name' or ‘the similar trademark', so the prior registered trademark 3 is also called, ‘the same as the prior registered trademark' or ‘the similar trademark' in both cases, and ‘the trademark' in both cases can be briefly named, ‘the trademark of this case and the similar trademark' in both cases.

2. Whether the trial decision of this case is legitimate

A. Grounds for revocation of the Plaintiff’s trial decision

The trademark of this case is a conspicuous geographical name, which is the abbreviation of the location of the Gun Office of Jeollabuk-do, and it is so long as there is no or very weak distinctive character as it is already registered in various ways by the letters of other trademarks. Therefore, the essential part of the trademark of this case is 'protruding and Korean', and the prior registered trademark 1 is in need of 'weld' as a whole in light of the fact that the designated goods are used as a material of wood, not a stone, and the prior registered trademark 2 is in need of 'weld' in view of the fact that the designated goods are used as a material of wood. Thus, the trademark of this case and the prior registered trademark 1, 2 are different from its appearance, name and concept, and the prior registered trademark 3 is already similar to the trademark of this case, which is similar to the trademark of this case, and thus, the trademark of this case cannot be recognized as invalid as the trademark of this case, and thus, the trademark of this case cannot be recognized as the trademark of this case.

(b) Markets:

(1) Whether the trademark is similar or not shall be determined by whether there is concern for mistake or confusion as to the origin of the goods by observing the appearance, name, and concept in an objective, overall, and separation from the two trademarks, and on the basis of a direct perception that ordinary consumers or traders feel with respect to the trademark. The combined trademark combining each constituent element of letters, letters, or figures is not necessarily a name and concept by the entire constituent part, but a combination of each constituent element is not an integral combination to the degree that it is deemed natural in the trade, if the separate observation of each constituent part is not an integral combination to the degree that it is not natural in the trade. In addition, if it is possible to think of two or more names or concepts from a single trademark, if it is deemed that one of them is identical or similar to another's trademark, the two trademarks are similar.

(2) Whether the trademark of this case and the registered trademark 1 and 2 are identical or similar to the registered trademark of this case

In comparison with the application trademark of this case and the prior registered trademark 1 and 2, the trademark of this case is composed of two parallels of the two-dimensional shapes and the number of the two-dimensional marks, whereas the prior registered trademark 1 is composed of two-dimensional licks, and the prior registered trademark 2 is composed of two-dimensional licks, and its overall appearance is less than above, but in the name and concept, the prior registered trademark of this case cannot be deemed as being indivisible to the extent that it is not natural in the trade, and it can be separated and observed separately from each part, and since the trademark of this case is connected without being used as "the prior trademark of this case" and "the prior registered trademark of this case is not used as a combination of two-dimensional licks" and "the prior registered trademark of this case" and "the prior registered trademark of this case cannot be seen as being separated from the two-dimensional licks and thus, it can be seen as being similar only to "the prior registered trademark of this case" as "the prior registered trademark of this case.

In the event that the letters that fall under a conspicuous geographical name and contain a different meaning are written in Korean only, it is difficult to judge what concept it is, and in all cases, trademark rights shall not be recognized. Since the Korean Intellectual Property Office has refused to register the letters in Korean as a conspicuous geographical name by applying Article 6 (1) 4 of the Trademark Act on the ground that they are different names of geographical names, "the part of Korean trademark applied in this case" cannot be recognized as its distinctive character, but since the letters that fall under a conspicuous geographical name and contain a different meaning are written in Korean only, it cannot be determined as having no distinctive character at any time because they constitute a part of the trademark, and the specific meaning or concept of the trademark written in this case should be individually identified and determined as a distinctive character, it is difficult to see that the word "the long-term" is a person who performs funeral in advance, the name of "the head of Jeollabuk-do" or "the name of the designated goods in this case," the name of "the head of Jeollabuk-do" or "the name of the designated goods in this case" or "the name of Jeollabuk-do.

In addition, in light of the fact that trademarks, including the word "weld", are registered differently with the subject about the bed and bed, it is understood that "weld" has already been dilution with the ornamental language about the bed and bed, and that general consumers can use the bed and bed in connection with the bed and bed, etc. for a long time, or that it is useful for general consumers to use the bed and bed and dydydy, so it is not possible to recognize its distinctiveness. However, considering the fact that various trademarks, including Gap 11 through 16, 18, and Eul 3 through 5 are registered with regard to bedydydydydydydydydydydydydydydydydydydydydydydydy, etc., but it is not basically used for the designated goods, such as "dydydydydydydydydydyd" or used.

On the other hand, in comparison with the designated goods of the applied trademark of this case and the prior registered trademark 1 and 2, all the two trademarks commonly include 'blickness', and the remaining designated goods also include most household products and related products, and their quality, shape, use, producer, consumer, etc., the designated goods of both trademarks are identical or similar.

(3) Whether the trademark of this case and the prior registered trademark 3 are identical or similar to the trademark of this case

First, the plaintiff's prior registered trademark 3 has become final and conclusive by the Supreme Court decision dated October 15, 2004 on the ground that the plaintiff's registration number similar to the trademark of this case is similar to the trademark of this case. Thus, the plaintiff's prior registered trademark 3 should not be recognized as a seafarer in relation to the trademark of this case because it was corrected later than the error in the examination of the Korean Intellectual Property Office, and it should not be recognized as being corrected later. However, Article 7 (1) 7 of the Trademark Act provides that "a trademark identical or similar to another person's registered trademark by prior application" shall not be recognized as a trademark, and Article 7 (1) 8 of the Trademark Act provides that "a trademark identical or similar to another person's registered trademark by the trademark of this case (referring to the date on which a trial decision invalidating the trademark registration becomes final and conclusive, and the main sentence of Article 7 (3) 7 of the same Act shall not be applied to the plaintiff's prior application for trademark registration which falls under the provision of Article 97 (1) of the Trademark Act.

Therefore, in comparison with the application trademark of this case and the prior registered trademark of this case, the trademark of this case is composed of the combinations of the two-dimensional shapes and the two-dimensional shapes, and the prior registered trademark of this case is composed of three-dimensional shapes, and the two-dimensional shapes and shapes are identical to the three-dimensional shapes. The prior registered trademark of this case can not be seen as being combined with the three-dimensional shapes and shapes, so if the two-dimensional shapes and shapes are observed separately, the trademark of this case can be separated from the two-dimensional shapes and shapes, so it can be seen as being indivisible to be natural if the two-dimensional shapes and shapes are not used separately.

On the other hand, in comparison with the designated goods of the applied trademark of this case and the prior registered trademark 3, both trademarks commonly include 'booms, licks, chairs', and the rest of the designated goods also include household products and related products such as quality, shape, use, producer and consumer. Thus, the designated goods of both trademarks are identical or similar.

(4) Therefore, since the trademark of this case is identical or similar to the trademark 1 to 3, the mark and the designated goods are identical or similar to the prior registered trademark, the registration shall be refused as it falls under Article 7 (1) 7 of the Trademark 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 Lee Jae-hwan (Presiding Judge)