Whether the applied trademark “” is similar to the pre-registered trademark “(negative)

In comparison with the pre-registered trademark “”, even if the part “JMY” in the composition of the two trademarks is identical, in light of the proportion of the two trademarks to the two trademarks, the degree of combination with other components, the overall composition, form, and concept of the two trademarks, there is no concern for ordinary consumers or traders to mislead or confuse the source of designated goods. Thus, it is not similar to the pre-registered trademark.

Article 7 (1) 7 of the Trademark Act

Supreme Court Decision 91Hu1359 delivered on January 21, 1992 (Gong1992, 913) Supreme Court Decision 2001Hu3415 Delivered on November 26, 2002 (Gong2003Sang, 260) Supreme Court Decision 2001Hu2986 Delivered on January 10, 2003 (Gong2003Sang, 650), Supreme Court Decision 2002Hu352 Delivered on February 14, 2003 (Gong2003Sang, 843)

A. Accenture (BO) Accent (Patent Attorney Nam-ho et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2005Heo1899 Decided September 23, 2005

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined the designated goods as “bridges, handbags, Handbags, mountain, etc.”

In preparation for the trademark of this case and the designated goods of this case, "JMY" and "CHO" of the applied trademark of this case, which are composed of "Sesan" or "Handbag, bridge, and non-dive metal block A", the trademark of this case and the registered trademark of this case can be separately observed with "JIMY" and "CHO" and the registered trademark of this case can be separately observed with each figure, "PATY" and "CHMY" and for the same reason, in cases where both the applied trademark of this case and the registered trademark of this case are separately observed with "JMY" and "JMY" as the same concept and concept are identical, and thus, they constitute a trademark similar to those of this case, and thus, they are likely to cause confusion and confusion as to the source of goods.

2. However, the lower court’s determination is difficult to accept.

The similarity of a trademark shall be determined depending on whether there is a concern for ordinary consumers or traders to mislead or confuse the origin of the designated goods in the transaction of the designated goods by observing the external appearance, name, and concept objectively, comprehensively, and separately, and on the basis of the direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if there is little possibility that the part alone may be separated or recognizable, and if it can avoid confusion of the source clearly when the overall observation is made, it shall not be deemed a similar trademark (see Supreme Court Decisions 91Hu1359, Jan. 21, 1992; 2001Hu3415, Nov. 26, 2002, etc.).

In light of the above legal principles and records, when observing the applied trademark of this case and the pre-registered trademark 1 and 2 objectively, comprehensively and separately, these trademarks are not similar to each other in terms of their appearance, name, and concept. Although the parts of “JIMY” in the composition of the applied trademark of this case and the pre-registered trademark 1 and 2 are identical, in light of the degree, location, overall composition, form, and concept of the trademark that combines the parts of “JIMY” with those of these parts, it is difficult to deem that ordinary consumers or traders might cause misconception and confusion as to the origin of the designated goods by referring both the applied trademark of this case and the pre-registered trademark of this case to “JMYY” only on the part of “JMYY”.

Nevertheless, the court below erred by misapprehending the legal principles as to the similarity of the trademark, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and thus, the ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)