[1] Whether a trademark which imitates a cited trademark which is neither well nor well-known nor well-known and applied for different designated goods constitutes Article 7(1)4 of the Trademark Act (negative)

[2] The meaning and requirements of a consumer's deceptive trademark under Article 7 (1) 11 of the Trademark Act

[1] "Trademarks which are contrary to the public order or good customs" under Article 7 (1) 4 of the Trademark Act refers to a trademark's composition or use of the trademark for the designated goods against the public order or good customs and customs of the general public. Thus, if the cited trademark is not well-known or well-known, it does not constitute a case where the cited trademark's trademark's composition or its use for the designated goods goes against the public order or good customs of the general public. Thus, if the cited trademark is not well-known or well-known, it does not constitute a case where the cited trademark's trademark's use for the designated goods by

[2] The term "trademarks which are likely to mislead consumers" as referred to in Article 7 (1) 11 of the Trademark Act means trademarks which are likely to mislead or mislead consumers as to the origin of goods or trademarks of a specific person, although they are not necessarily well-known or well-known, or goods of the same kind are not always used in general trade in Korea at least if they are goods or trademarks of the specific person. In such a case, only if a trademark identical or similar to the cited trademark is used in the same product, it may be said that there may be concerns for ordinary consumers to mislead or confuse the origin of goods under the above provision. Meanwhile, if the cited trademark is acquired well-known because it is widely known to the majority of the general public other than the traders in relation to the goods using it, it shall be deemed that the trademark is produced or sold by a well-known person or a person having special relation with the trademark to the extent that it is not widely known to general consumers as to the origin or origin of goods or, in light of the purpose of the trademark's use and sale of goods, it shall be deemed that the trademark is not widely known to the general consumers or consumers.

[1] Article 7 (1) 4 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act

[1] [2] Supreme Court Decision 96Hu2296 delivered on October 14, 1997 (Gong1997Ha, 3467) / [1] Supreme Court Decision 96Hu2173 delivered on July 11, 1997 (Gong1997Ha, 2521) / [2] Supreme Court Decision 96Hu412 delivered on March 14, 1997 (Gong197Sang, 1111) 97Hu334 delivered on August 29, 197 (Gong197Ha, 2899)

Applicant (Patent Attorney Kim Young-soo, Counsel for plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 95Na2843 dated December 27, 1996

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are examined.

1. Summary of fact-finding and judgment of the court below

The application for trademark which imitates a creative trademark of another person, which has accumulated an intangible value, should not be allowed to be registered as an act that disturbs the foundation of the trademark system, as well as impairing the sound order of commercial transactions. Thus, the cited trademark of this case (trademark registration number omitted), which is a trademark of this case (hereinafter referred to as a “personally used trademark”) is composed of “OMPHALSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSPSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSASSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSEEEEEEEEEEE).

2. Judgment on the grounds of appeal

"Trademarks which are contrary to the public order or good customs" under Article 7 (1) 4 of the Trademark Act refers to cases where the composition of a trademark itself or where the trademark is used on the designated goods, the meaning or contents that the ordinary consumers use are contrary to the public order of society and public order, or to the good customs and good customs that are the ordinary moral sense of society. If the cited trademark is not well-known and well-known, even if the quoted trademark is creative, it does not constitute Article 7 (1) 4 of the Trademark Act just because it has copied it and applied differently for the designated goods (see Supreme Court Decision 96Hu296, Oct. 14, 1997).

In other opinions, the court below erred by misapprehending the legal principles as to Article 7 (1) 4 of the Trademark Act, which held that the trademark applied for in this case falls under Article 7 (1) 4 of the Trademark Act.

In addition, the term "trademarks which may mislead consumers" as referred to in Article 7 (1) 11 of the Trademark Act means trademarks which are likely to mislead or mislead consumers as to the origin of goods or trademarks of a specific person if they are used in the same domestic trade at least in the same time. In such a case, only if a trademark identical or similar to the cited trademark is used in the same product, it may cause general consumers to mislead or confuse consumers as to the origin of goods under the above provision. On the other hand, if the cited trademark is acquired well-known because it is widely known to the majority of the general public except in relation to the goods using it, it shall be deemed that the trademark is produced or sold by a well-known or specially related person to the extent that it might not mislead or confuse consumers as to the origin of goods or goods of the same or similar kind, in light of the purpose and condition of sale of goods, it shall be deemed that the trademark is not widely known to the extent that it might mislead or confuse consumers as to the origin of goods or goods of the same or similar trademark.

Despite the above legal principles, the court below determined that the trademark at all times is likely to mislead consumers, without examining whether the cited trademark is well-known or whether the designated goods are related to the cited trademark, and where the application is filed by imitateing the cited trademark which is creative without examining the above legal principles.

The grounds of appeal are with merit.

3. Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)