A. Whether the above provisions can be applied mutatis mutandis to the current Trademark Act or the former Trademark Act, which does not apply mutatis mutandis to the so-called application correction under Article 63 (b) of the Patent Act, Article 56 and Article 57 of the former Patent Act

B. Criteria for determining similarity of trademarks

1. Although the provisions of the current Trademark Act (Act No. 2506 of Feb. 8, 1973) or the former Trademark Act (Act No. 71 of Nov. 28, 1949) do not apply mutatis mutandis to the so-called application amendment under Article 63 of the Patent Act (Act No. 2505 of Feb. 8, 1973) and Article 56 and Article 57 of the former Patent Act (Act No. 950 of Dec. 31, 1961) are not applicable mutatis mutandis, it is reasonable to view that the above provisions concerning the amendment of patent application may apply mutatis mutandis to the case where the amendment of patent application is problematic and the case where the nature of the invention is changed

2. The determination of the trademark is based on the objective and overall observation of the external name, title, and concept of the trademark and, in whole or in part, on the basis of whether it would cause confusion to ordinary consumers.

Attorney Taeyang Industrial Co., Ltd., Counsel for the defendant-appellant

Director of the Patent Bureau

Patent Court Decision 343 dated June 30, 1975

The appeal is dismissed.

The costs of appeal shall be borne by the appellant.

The grounds of appeal are examined.

1. With respect to amendments to the application:

Article 63 of the current Trademark Act (Act No. 2506 of Feb. 8, 1973) or the former Trademark Act (Act No. 71 of Nov. 28, 1949) does not apply mutatis mutandis Article 63 of the Patent Act (Act No. 2505 of Feb. 8, 1973) and Article 56 and Article 57 of the former Patent Act (Act No. 950 of Dec. 31, 1961).

However, in principle, the amendment of a patent application under the Patent Act is a matter of the principle that the specification or drawing is complete from the beginning of the application, but under the seafarerism, it is difficult to request the complete from the beginning in the application. On the other hand, allowing the unlimited amendment of a patent application without restriction after the application is allowed not only by mixing the examination affairs, but also by allowing the amendment under certain restrictions because it might prejudice the interests of a third party if the nature of the invention is changed. Therefore, it is reasonable to deem that the above provision on the amendment of a patent application can be applied by analogy to the same trademark law. Further, in applying by analogy the specification or drawing under the Patent Act, the application or sample itself, indicating the designated goods on the trademark, and the change of the essential parts of the trademark constitutes the extension of designated goods or the change of the essential parts of the trademark.

In this case, the application for trademark registration was crossed than the initial Korean language "ACEN" and was used as a trademark "ACEN" in the lower part of this case, and the above application for trademark registration was submitted in English with the upper part "TAEWGALN" and the lower part "TAEWGEG" together with the "TAEK" column in the lower part of this case. The addition of "TAEWG" is an addition of a new distinctive element, unlike other industrial property, and its appearance or name, as well as an active expansion in terms of concept. Therefore, the amendment of the above provision of the Patent Act can not be permitted if the correction of a clerical error in the scope of patent application can be made within the scope of the name of the completed correction and the extension or extension of the scope of the patent application.

Since it is possible to add the original trademark such as novels, even if the origin of the product is clear, it cannot be said that the appearance, name, and concept of the trademark itself are reduced or reduced, and there are cases the same as novels, the above mentioned theory does not change, and it cannot be said that the criteria for examining similar trademarks are applied and the criteria for dealing with whether to change the substance of the application.

Therefore, it is just that the original adjudication rendered that the correction of a trademark sample of this case cannot be accepted as a change of the substance of the trademark, and the first point of the theory of objection from the opposing opinion is groundless.

2. As to the determination of the trademark:

If the meaning of a trademark is objectively different from its appearance, name, and concept as a whole, and only one or all of them cause confusion to ordinary consumers (see, e.g., Supreme Court Decision 70Hu41, Sept. 29, 1970; Supreme Court Decision 71Hu37, Jan. 31, 1972). It appears to the above purport as a case of party members of the lawsuit. The "E" or "AE", which is the trademark applied for this case, is the product of category 49, whose name and concept are identical to that of the trademark, and it is not obvious that there is no confusion between the trademark and the other party's trademark's trademark's appearance and the other party's trademark's trademark's appearance are similar to that of the other party's trademark's trademark's appearance, so it cannot be seen that there is no obvious difference between the two.

Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Byung-ho (Presiding Justice)