Plaintiff (Patent Attorney Cho Young-young et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

October 23, 2008

1. The decision made by the Intellectual Property Tribunal on April 29, 2008 on the case No. 2007 Won9326 is revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. The applied trademark of this case

(1) Date/application number: October 30, 2006/2006-54809

(2) Composition:

(3) Designated goods: Pursuant to the 10th category of goods, treatment equipment for household pressure (the growth of the tissue’s recovery, pressure, removal, and transplant system, the use of sound pressure to remove infections, sub-atmotop ether’s operations, the implementation of sub-atpack de de de forfce lacing puls and decomprecing to pultile, fla and graftft surival and remocing in order to promote the growth of the tissue’s recovery, remove infections.

(b) Preregistered trademarks;

(i) the Prior Registered Trademark 1

(1) Date of application/registration date/Renewal date/Renewal date/registration number: October 21, 1983/61/60 of June 11, 1984 ( January 20, 1995)/No. 101568

(2) Composition:

③ Designated goods (which became the registration of the conversion of the classification of goods on October 28, 2004)

Paper No. 1 of the Category 1 of the Product Classification

Manwons of Category 9 classified into goods: Written Rags, Balans, Walglass, Walglass, Balglass, temperature systems for non-medical purposes, ruptures, ruptures, low-weights, Walging,

B. The temperature limit for medical treatment of Chapter 10, for classification of products

(4) Person entitled to registration: EFCCO corporation.

(ii) the Prior Registered Trademark 2

(1) Date of application/registration date/Renewal date/Renewal date/registration number: August 27, 1985/ September 11, 1987/ April 18, 2007 ( March 29, 1997)/No. 145208

(2) Composition:

③ Designated goods (which became the registration of the conversion of the classification of goods on May 7, 2007)

The product classification 10th category 10 kinds of artificial resistant patient/placer wafers for an artificial resistant patient/placer (wwwfer), wale for an artificial resistant patient/placer, claters for an artificial resistant patient/placer, artificial resistant patient/placer, Belgium for an artificial resistant patient/placer, Belgium for an artificial urine patient/placer, urine urine for an artificial urine patient/placer, strings for an artificial arsens, artificial resistant arsens, artificial arsenspaspas for an outdoor arsens, telostter/placers for an artificial arsens

(4) The obligee: Al. A.S. Squib B&D, L.L.C.

C. The procedural background

On October 30, 2006, the Plaintiff applied for the registration of the applied trademark of this case. On July 31, 2007, the Korean Intellectual Property Office rendered a decision of refusal on the ground that the trademark of this case and the pre-registered trademark of this case are similar to the trademark of this case and designated goods, and thus the trademark of this case constitutes Article 7 (1) 7 of the Trademark Act. On the other hand, the Plaintiff filed a petition for a trial seeking revocation of the above decision of refusal. The Korean Intellectual Property Tribunal deliberated on this as 2007 Won9326, and rendered a decision of refusal on April 29, 2008.

【Evidence Class 1, 2, 4, 6 evidence, Eul evidence Nos. 1 through 4, and the whole purport of the pleading

2. Determination as to whether the applied trademark of this case falls under Article 7(1)7 of the Trademark Act

A. Whether the mark is similar

(1) Criteria for determination

The similarity of trademarks shall be determined by whether there is a concern for mistake or confusion as to the origin of the goods by observing the appearance, name, and concept of two trademarks objectively, comprehensively, and separately, and on the basis of a direct perception that ordinary consumers or traders feel with respect to the trademark. The combination trademark consisting of each constituent part of letters, letters, or figures must be determined by the whole constituent part, not by the name, concept, but by the combination of each constituent part to the extent that it is not natural if separate observation of each constituent part is made so far as it is not indivisible to the extent that it is not natural in the trade. In addition, where it is possible to think of two or more names or concepts from one trademark, if it is recognized that one of them is identical or similar to another's trademark, the two trademarks are similar (see Supreme Court Decision 200Hu1871 delivered on October 15, 204).

(2) Specific preparation

(A) The trademark " " " "" is a trademark consisting of three ".." and "A and "C", 5 English characters, five English characters, "ACIV", and the preceding part of the trademark "ACIV is similar to the composition of "ACIVE" and "AC", which are relatively easily understandable English languages with the meaning of "act and active," and thus, the trademark of this case can be separated and observed only in the part "" and, in such case, can be referred to as "ACIV".

(B) The pre-registered trademark “ 1” is a trademark consisting of two parts below and below, and can be separately observed with the English language portion and the Korean language portion, and the name and concept can be referred to as “ethb” by the Korean language portion. The pre-registered trademark “ 2” can be easily known to ordinary consumers or traders, and it is difficult to see that the combination of the above letters does not create any special concept, and that the above letters is not an integral combination to the extent that it is deemed natural if it is separately observed, the pre-registered trademark 2 can be separated and observed by only the part “”, and, in that case, the name and concept can be referred to as “ethb”.

(C) Although the applied trademark of this case and the pre-registered trademark of this case are not similar to their external appearance, as seen in the above (a) and (b), the applied trademark of this case and the pre-registered trademark of this case can be separately observed only on the parts of "", "" and "" as seen in the above (a) and (b), the trademark of this case and the pre-registered trademark of this case are identical or similar to their names and concepts. Therefore, if the applied trademark of this case are used for goods identical or similar to the designated goods of the pre-registered trademark, there is sufficient possibility that ordinary consumers or traders may cause misconception or confusion as to their source. Thus, the trademark of this case and its marks are similar to the pre-registered trademark.

B. Whether the designated goods are similar

(1) Criteria for determination

Even if the pending trademark is similar to the pre-registered trademark, it shall not be deemed as a trademark that cannot obtain trademark registration under the Trademark Act unless it is used for designated goods identical or similar to the designated goods of the pre-registered trademark. The classification of goods under Article 10(1) of the Trademark Act and Article 6(1) of the Enforcement Rule of the same Act is classified for the convenience of trademark registration and does not define the scope of similarity of goods (Article 10(2) of the Trademark Act). Thus, it cannot be readily concluded as identical or similar goods just because they belong to the same kind of goods as the classification of goods. The determination of whether the designated goods are identical or similar should be made in accordance with the general transaction norms in consideration of the circumstances such as quality, shape, use, production sector, sales sector, scope of transaction, etc. (see Supreme Court Decision 2003Da1495, Oct. 10, 203; 2001Hu1495, Jan. 14,

(2) Specific preparation

(A) The designated goods of the applied trademark of this case, “raw pressure treatment equipment for home use” are machines that promote the growth of the skin and the transplant body, and treat the skin outside the skin while using sound pressure to remove infections (see evidence No. 8-1 to 4). Of the designated goods of the prior registered trademark 1, “medical temperature gauge” is an apparatus measuring the temperature used for medical purposes (the remaining designated goods of the prior registered trademark 1 are clearly different from the designated goods of the pending trademark of this case, and thus, does not look at them). The designated goods of the prior registered trademark 2 are medical institutions used for the purpose of antipathy or gold patients.

(B) First, as to the shape and quality, “medical temperature”, which is the designated goods of the applied trademark of this case, is in the same shape as “domestic pressure treatment equipment” (see evidence No. 8-4), and the designated goods of the registered trademark of this case are clearly different from those of the designated goods of the registered trademark of this case. ② With respect to the use and quality, the designated goods of the applied trademark of this case are convenient for patients to easily carry and easily work (see evidence No. 8-1 through 4 of the registered trademark of this case), while “medical temperature” among the designated goods of the first registered trademark of this case, is an apparatus measuring the temperature, and the designated goods of the applied trademark of this case are those of the specialized medical institution used for gold patients and those of the designated goods of this case, and there are differences between manufacturers and consumers of the applied trademark of this case and the registered trademark of this case, while the designated goods of this case are those of the specialized medical institution and consumers of the designated goods of this case, the manufacturer and consumers of the designated goods of this case are both designated goods of the designated goods of this case and the specialized medical institution.

(C) As seen above, each of the designated goods of the pending trademark and the prior registered trademark of this case are partly different from the shape, use, quality, and consumer of specific goods, and there is no evidence that the designated goods of both trademarks are similar to those of both trademarks. Thus, it is difficult to deem that each of the designated goods of the pending trademark belongs to the same category under the Trademark Act (if each of the designated goods of the designated goods of the pending trademark belongs to the same kind under the Trademark Act, the shape, use, manufacturer, and consumer is a similar goods of some different trademarks, it is unreasonable to excessively expand the scope of its similarity).

C. Sub-committee

Therefore, although the applied trademark of this case and the pre-registered trademark of this case are identical or similar to the name and concept, their designated goods are not similar. Thus, the decision of this case is justified in holding that the trademark of this case cannot be registered under Article 7 (1) 7 of the Trademark Act, and its revocation cannot be avoided due to its illegality.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is legitimate, and it is decided as per Disposition by admitting it.

Judges' crude oil (Presiding Judge) and Kim Jong-soo