(a) Where the registered trademark of an earlier application is not identical or similar to the designated goods, a register of the same or similar trademark;

B. Criteria for determining similar trademarks under the Trademark Act

(a) even if a trademark is identical or similar to the registered trademark based on the earlier application, if it is not used on goods identical or similar to the designated goods of the registered trademark, it does not fall under Article 9(1)7 of the Trademark Act;

B. The same or similarity of designated goods is to be determined according to the transaction norms in consideration of their quality, use, form, actual circumstances of transaction, etc. Therefore, it is difficult to readily conclude that the designated goods belong to the same or similar kind of goods as specified in the Enforcement Rule of the Trademark Act.

Article 9(1)7 of the Trademark Act

A. Supreme Court Decision 82Hu5 delivered on March 27, 1984, 85Hu113 delivered on February 10, 1987, and 86Hu153 delivered on August 25, 1987 (dong)

Patent Attorney Park Sang-hoon et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 85 Section 711 dated September 30, 1986

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

The applicant's patent attorney's ground of appeal (if any ground of appeal is amended, to the extent that it supplements the grounds of appeal) is examined.

According to Article 9(1)7 of the Trademark Act, trademarks identical or similar to or similar to the registered trademark of another person based on an earlier application and used on goods identical or similar to the designated goods of the earlier application cannot be registered. Thus, even trademarks identical or similar to or similar to the registered trademark of the earlier application do not constitute those used on goods identical or similar to the designated goods of the earlier application, if they are not trademarks used on goods identical or similar to the designated goods of the earlier application. Meanwhile, the same or similarity of designated goods must be determined in accordance with the transaction norms in consideration of their quality, use, shape, transaction circumstances, etc. Therefore, it cannot be readily concluded that they belong to the same or similar goods in the same category in the item classification of goods under the Enforcement Rule of the Trademark Act (see, e.g., Supreme Court Decisions 81Hu41, Dec. 28, 1982; 82Hu5, Mar. 27, 1984; 85Hu113, Feb. 10,

원심결은 그 이유에서 본원상표의 지정상품인 "목제완구, 마네킹인형, 라켓, 낚시대, 승마구두"등과 인용상표의 지정상품인 "철봉, 뜀틀, 안마, 미용체조기, 트위스트머싱, 트림벨트, 멈벨, 롤어웨이, 씻엎디스크, 제자리걸음기" 등은 모두 상표법시행규칙의 상품구분 제43류 제3군의 운동기류에 속하여 같은 상품군을 지정하고 있음을 감안할때 본원상표와 인용상표는 전체적으로 보아 일반수요자나 거래자로 하여금 상품출처의 오인, 혼동을 일으킬 정도로 유사한 상표라고 판단한 다음 이 사건 출원신청을 상표법 제9조 제1항 제7호 에 의하여 거절사정한 조치를 유지하고 있다.

However, even if each of the designated goods in this case belongs to a movement pattern of the same kind as the goods classification under the Enforcement Rule of the Trademark Act, the designated goods of the cited trademark above the above original trademark cannot be deemed to be goods of the same kind or similar in light of the quality, use, shape, transaction circumstances, etc. of each of the designated goods indicated in the records. Thus, the rejection of the application of this case under the premise that the original decision considers the above designated goods as goods of the same kind or similar kind, the rejection of the application of this case under the premise that the above designated goods are regarded as identical or similar goods, is erroneous in the misapprehension of legal principles as to "the same or similar goods as defined in Article 9 (1) 7 of the Trademark Act"

Therefore, without examining other grounds of appeal, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office Appeal Trial Office. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee-hee (Presiding Justice)