2010Hu2773. Nullification of registration (Trademarks)

Head of Fisheries Corporation

Patent Attorney Cho Jong-chul, Counsel for the plaintiff-appellant

Long-term Corporation Heading Gu

Attorney Kang Jae-sik, Counsel for the defendant

Patent Attorney Jeong-won, Counsel for the plaintiff-appellant

Patent Court Decision 2010Heo3509 Decided August 20, 2010

December 9, 2010

Of the part of the judgment below against the defendant, the part of the designated goods other than the trademark registration number No. 80096, the trademark registration number No. 80096, or plastic signboard, pet animal house, wood box, saver, saver, save, save, and saves for young children, shall be reversed, and the case shall be remanded to the Patent Court.

The remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In a case where it is evident that the parties concerned were not proven due to negligence or misunderstanding or where there is no explicit dispute between the parties as to the matter to be a issue, the court shall actively exercise the right of explanation and urge the parties to provide evidence or give them an opportunity to state their opinions. If one of the parties was not aware of or have not anticipated, without neglecting this, due to the legal point of view that the parties failed to perform their duty of explanation, and thereby, it is illegal (see, e.g., Supreme Court Decisions 2001Da11055, Jan. 25, 2002; 2009Da39547, Sept. 10, 2009; 2009Da39554, Sept. 10, 2009; 2009Da39554, Feb. 3954, 2009). Thus, the court below did not err by failing to exhaust all necessary deliberations or failing to exhaust all necessary deliberations due to a violation of the duty of explanation.

Therefore, this part of the ground of appeal cannot be accepted.

2. On the second and third grounds for appeal

A. The combined trademark consisting of both characters and letters or figures is not necessarily named and conceptualized by the entire constituent part, but can be briefly named and conceptualized by only a part of its constituent part unless it is an indivisible combination to such an extent that it is deemed natural in the trade. In addition, in a case where two or more names or concepts can be thought on one trademark, if one of them is deemed identical or similar to another’s trademark, it is similar (see Supreme Court Decision 2003Hu1871, Oct. 15, 2004, etc.). Meanwhile, the classification of goods pursuant to Article 10(1) of the Trademark Act and Article 6(1) of the Enforcement Rule of the same Act is separate for the convenience of business of trademark registration, and it does not constitute a similar scope of goods, and thus, it cannot be determined by the Supreme Court’s decision that it belongs to the same or similar kind of goods, which is identical or similar to that of the designated goods, based on the classification of goods.

7.9 (See, e.g., Supreme Court Decision 2008Hu5045, Sept. 1, 2008)

B. In light of the above legal principles and records, the part of "JS" in the registered trademark of this case (No. 80096) composed of the JS heads is merely recognizable to the extent of English initial. It is not an independent distinctive character. The part of "the number" and "Gu" are not a combination of new ideas by the combination, so it cannot be seen as being indivisible to the extent that it would be natural in the trade. Thus, the registered trademark of this case is not an integral part of the designated goods, such as 'blurgical or plastic signboard, pet box, bridge, bridge, bridge, glurgical, glurgical, glurgical, glurgical, glurgical, galket, galket, galker, galker, galker, galker, galker, galker, galker, galker, galker, pum, s.

In relation to 'the e-China' which is the designated goods, it is natural to distinguish 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '' and 'the 'the 'the 'the ' the ' the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the '' as the ' the ' the ' the ' the ' the ' the '' has no distinctive character because of the ' the '' part itself

Thus, the registered trademark of this case and the comparable trademark of this case can be conceptually named and conceptualized only with "the number of pages". In this case, the name and concept of these trademarks are the same, so the registered trademark of this case and the comparable trademark of this case are similar trademarks.

C. Furthermore, among the designated goods of this case, ‘bridges, strong strings, booms, multi-braces, strings, strings, events, bottles, bottles, non-metallic metal boxes, trings, three-dimensional strings, line strings, boxs, mail strings, newspaper display strings, strings, hembrings, strings, photobrings, photobrings, strings, photobrings, photobrings, strings, chairss, chairss, design (robebs), and similar goods are not the same as those of the above-mentioned goods, but if they are not the same as those of the above-mentioned goods, they are not the same as those of the manufacturer or seller, but are the same as those of the designated goods, such as those of the above-mentioned goods, and are not the same as those of the manufacturer or seller of plastic goods, so they are not the same as those of the compared goods.

D. Therefore, with respect to the registered trademark of this case with regard to the remaining goods except for the "batch or plastic signboard" among the designated goods of this case, pet animal house, wooden box, liquid box, strawer, previous chairer, and playground for young children", the trademark registration of this case is similar to the comparable trademark, mark, and designated goods which were registered in violation of Article 7 (5) 3 of the Trademark Act and for which three years have not passed since the decision of revocation became final and conclusive. However, in relation to the "batch or plastic signboard" among the designated goods of this case, it cannot be said that these goods were registered in violation of the above provisions of the Trademark Act because they were not similar to the designated goods of the comparable trademark.

Nevertheless, on the premise that the registered trademark of this case is always recognized as a whole as "for the designated goods of this case", the court below held that the registered trademark of this case does not constitute a ground for invalidation under Article 7 (5) 3 of the Trademark Act even with respect to the remaining designated goods excluding 's title or plastic signboard, pet animal house, pet animal house, boom, saver, saver, saver, and save for infants' among the designated goods of this case, on the ground that it is difficult to see that the trademark of this case and the mark and the designated goods are identical or similar to the trademark of this case as a whole. Thus, the court below erred in the misapprehension of legal principles as to whether the trademark of this case are similar to

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part of the designated goods, excluding the "titles or plastic signboards of the registered trademark of this case, pet houses, wooden boxes, liquid boxes, chairs, and play trusses for young children", shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Lee Hong-hoon

Justices Kim Gi-hwan

Justices Lee In-bok