[1] The method of determining similarity of a product mark under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The case holding that "clobane," which is used for goods such as "clobage bus," "CAMBRD MF MEBERS," and "itrts," constitutes a similar product mark under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act, which is used for goods such as "clobage bus," etc.

[1] Even though a trademark or service mark consisting solely of a conspicuous geographical name and is not protected under the Trademark Act, if it has been used for a long time, and thus customers or ordinary consumers have widely recognized it as indicating a certain person's business, it constitutes a business mark protected under the Unfair Competition Prevention and Trade Secret Protection Act. Whether a trademark is similar to a trademark under Article 2 subparagraph 1 (a) of the same Act shall be determined based on whether there is a possibility of misconception or confusion as to the source of the product by observing the two trademarks used for the same kind of product in terms of appearance, name, concept, etc. as a whole in terms of the appearance, name, and concept, etc. of the two trademarks used for the same product.

[2] The case holding that the defendants' goods marking used for goods such as "cambage buses," "cambrts," and "cambrts," which are goods marks used for goods such as "cambrts," etc. of victims' goods such as "cambrts," constitutes similar goods marks under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Article 2 subparagraph 1 (a) of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 1 (a) and Article 18 (3) 1 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 97Do322 delivered on April 23, 1999 (Gong1999Sang, 1088) Supreme Court Decision 98Da63674 delivered on February 23, 2001 (Gong2001Sang, 723) Supreme Court Order 2004Ma737 Delivered on May 27, 2005

Defendant 1 and one other

Prosecutor

Attorney Kang Dong-dong et al.

Seoul District Court Decision 2003No1682 Delivered on June 25, 2003

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Although a trademark or service mark is not protected under the Trademark Act because it has been used only with a conspicuous geographical name, it constitutes a business mark protected by the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Unfair Competition Prevention Act") if traders or ordinary consumers widely recognize it as indicating a particular person's business because it has been used for a long time (see Supreme Court Decision 97Do322, Apr. 23, 199). Whether a product mark is similar under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act is identical to a trademark under Article 2 subparagraph 1 (a) of the Unfair Competition Prevention Act. In that sense, two goods marks used for the same kind of product are to be comprehensively, objectively, and qualitatively observed, based on the recognition of the product mark, and are likely to mislead or confuse the origin of the product, it shall be determined by whether it is 70 parts of the product as a whole and, in particular, 70 parts of the product can be combined with the trademark's name or its entire distinctive concept, and it shall be determined naturally and naturally as far as necessary.

2. In light of the above legal principles and records, the court below held that the defendants' act of "clobage bus, CABD MFS" or "CAMBDGE", which is a victim's product mark used for goods such as "new uniforms", is considerably recognized as indicating male products such as new uniforms manufactured and sold by ordinary consumers or traders for a long time in trading society, and the defendants' goods mark used for the goods such as "clobage do not fall within the scope of "clobage," UNIVITIT CABDGE" or "CABGE" is not identical to those of the defendants' goods mark "clobage," and thus, the court below held that there is no possibility that the defendants' act of "clobage" and "clobage" can be separated from each other's "clobage" or "CABDGE" or "displobrance," and thus, the defendants' act of unfair competition can not be seen as an act of unfair competition," and thus, the whole concept and thus, it can be seen as the defendants's.

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

Justices Lee Kang-tae (Presiding Justice)