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The judgment below is reversed, and the case is remanded to the Patent Court.
Reasons
The grounds of appeal are examined.
1. Whether the trademark is similar should be determined in accordance with the objective, overall, and different observation of the trademark in terms of its appearance, name, and concept, and whether there is a possibility of misconception or confusion in the transaction.
In particular, in the case of figure trademarks, if the dominant increase in the appearance is the same or similar, and if the two trademarks are used together with the same or similar goods, if there is a concern to mislead general consumers as to the origin of goods, the two trademarks should be deemed similar.
In addition, the determination of similarity of trademarks shall not be made in comparison with two trademarks themselves, but shall be made from the perspective of whether there is a concern for misconceptions about the source of goods among the general consumers who stand the two trademarks differently and at the same time and place. In the event that there is a concern for misconceptions about the source of goods when comprehensively considering the impression, memory, association, etc. that the two trademarks stand in general consumers by their appearance, name, concept, etc., the two trademarks should be deemed similar.
(see, e.g., Supreme Court Decision 2010Do15512, Mar. 14, 2013). The registered trademark of this case is prior to the instant application trademark
2. In light of such legal principles, the trademark of this case (trademark No. 2012-5435) and document bags consisting of “the bank,” etc. as designated goods and the trademark of this case (Trademark No. 2012-5435) and “the document bank,” etc. are similar to the registered trademark of this case, which is composed of
In light of ordinary consumers' direct perception, if the appearance of two trademarks are observed differently, the two marks are jointly carried out in the upper part of two shapes, such as the fact that two shapes of a arche type, which are carried by both inside the black figure, and that two times the left part of the color figure is cut off more than the right part of the upper part, and the alphab “B” seems to have been devised by using the alpha.