Criteria for determining similarity of trademarks

Whether or not a trademark is similar under the Trademark Act is determined by whether or not two trademarks used for the same kind of product are likely to cause mistake or confusion as to the origin of the product by objectively, comprehensively, and separately observing the appearance, name, and concept of the trademark in an objective, overall, and separately. Thus, one of the external appearance, name, and concept is similar even if it is similar, the trademark cannot be deemed similar if it can avoid confusion as to the origin clearly.

Article 9(1)7 of the Trademark Act

Supreme Court Decision 79Hu68 delivered on March 25, 1980, Supreme Court Decision 81Hu29 delivered on June 8, 1982

claimant

[Defendant-Appellant] Defendant 1 and 3 others

Korean Intellectual Property Office Decision 47 delivered on May 27, 1981

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The ground of appeal by the respondent's agent is examined.

According to the reasoning of the original decision, the court below recognized that the trademark of this case and the cited trademark are superior to the appearance or concept, but even though the trademark has the shape of " king", which is the center of the origin symbolizing quantity, the trademark is clearly marked as "luminous" and referred to as "luminous" rather than the "U.N.K.G" of this part, as a combination of letters, the term "JKWG" is generally named as "luminous" or "quasi-luminous electricity", and determined to the effect that the trademark is not identical to that of the two, and thus, it is unreasonable to see that the trademark is not identical to the other one, for the reason that it is extremely similar to that of the two, and thus, it is unreasonable to see that there is a possibility that both the two trademarks can easily be mistaken for the reason that the two trademarks are identical in terms of the empirical rule of goods transaction rather than quasi-luminous.

However, the similarity of trademarks under the Trademark Act is determined by whether or not two trademarks used for the same kind of product are likely to cause mistake or confusion as to the origin of the product by objectively, comprehensively, and separately observing their external appearance, name, and concept. Thus, even if one of the external appearance, name, and concept is similar, if it can clearly avoid confusion as to the source, the trademark can be seen as a similar trademark. According to the records and original decision, the trademark can be seen as a trademark if it is possible to avoid confusion as to the source clearly, and it is obvious that the two trademarks are identical to the above-mentioned trademark as a trademark, "G", which is the center of the original form symbolizing the sunlight and pattern, indicating the sunlight in the upper half of the lower part, and it is obvious that the two trademarks are identical to the above-mentioned trademark in terms of the shape, name, and concept "I am" and the cited trademark as a whole, "I am easily see that there is a concern for confusion between the two trademarks and the upper part of the trademark in the middle part of the trademark."

Nevertheless, it cannot be said that there is an error of law regarding interpretation of the Trademark Act, and in this regard, it is difficult to escape from reversal on the grounds that the original decision was based on the premise that the above two trademarks are similar for the reasons as seen earlier.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench, without further proceeding to decide on the other points, and the original decision is reversed.

Justices O Sung-sung(Presiding Justice)