The case where the applicant trademark " and the cited trademark " and" " are not similar to each other in the event that the applicant's trademark " and the cited trademark" are observed in a different and different manner.

The case holding that, while the trademark "Aphabac" is composed of a form of a cross line between the two sides and the two sides of the cited trademark "Aphabac", the shape of the cited trademark "Apbac" and "Aphababac" are different in that the two sides of the cited trademark "C," which were adopted by the cited trademark as its location, are simple in itself, but the appearance of the two shapes of the cited trademark "C," which are adopted by the cited trademark, are very unique, and from a visual point of view, the above difference between the applied trademark and the cited trademark, i.e., whether or not the cited trademark "C" are adjacent to the center part, and whether the center part runs across the center, it is an important factor that determines the overall increase of the above trademark, and the applied trademark and the cited trademark do not change where the overall observation and observation are conducted differently due to the above difference.

Article 7 (1) 7 of the Trademark Act

Kim Jong-soo (Law Firm Hanyang Patent, Patent Attorney Kim Jong-soo et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

August 14, 2003

1. The decision made by the Intellectual Property Tribunal on April 29, 2003 on the case No. 2002 Won3746 shall be revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts can be acknowledged in full view of the whole purport of the pleadings as stated in Gap evidence 1 through 7.

A. Details of the applied trademark of this case and the cited trademark

(1) The applied trademark of this case

(1) Composition;

2. Designated goods; 'Slucers, Trackers, Swaz, sports Shirts, Kaz, Kadis, Kaurts, Titts' under Article 6(1) [Attachment 1] of the Enforcement Rule of the Trademark Act (hereinafter referred to as “goods classification”) No. 25 of the classification of goods

(3) The filing date/ the application number; December 2, 2000 / 2000-55918

④ Applicants; Plaintiff

(2) A cited trademark 1

(1) Composition; (2) Registration number; No. 56673;

(3) The filing date/registration date; the date of September 28, 197; the date of July 18, 1978 (the date of December 6, 1988; the date of February 8, 199)

④ 권리자 ; 샤넬

(5) Designated goods; "Catching and clothes (limited to the goods specified in this Chapter) with the funeral goods specified in Chapter 45 of the former Classification of Goods (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 83, Feb. 23, 1998; hereinafter the same shall apply)."

6 goods, such as "bals, earbals, etc." in the category of goods of category 14

28 goods, such as 'forthing clothes, garments, two uniforms, two clothes, ething d-learning d-strings, Schlages, scke, lucco, lecot, lethret, sweet, sweet, Kadi, Kadi, etc.

8 goods, such as "the head, head, and head net" in the category of goods of Chapter 26.

(3) A cited trademark 2

(1) Composition; (2) Registration number; No. 304800;

(3) Date of application/registration; November 9, 1993/ December 28, 1994

④ 권리자 ; 샤넬

(5) Designated goods; 133 goods classified into category 45 of the former goods; 133 goods, such as 'Towings, shoess, student uniforms, reflectrs, tables, Swegs, Kadi, Kaurts, etc.

(b) a decision of refusal by the Korean Intellectual Property Office;

On August 28, 2002, the Korean Intellectual Property Office rendered a decision to refuse the registration on the ground that the trademark of this case is similar to the cited trademark which is the earlier application and the designated goods are similar to those of the cited trademark and fall under Article 7(1)7, 9 and 10 of the Trademark Act.

C. Plaintiff’s appeal against rejection decision (Patent Tribunal 2002 Won3746)

(1) The plaintiff's appeal and the judgment of the court below

On October 2, 2002, the Plaintiff filed an appeal against the decision of refusal with the Intellectual Property Tribunal. However, the Intellectual Property Trial and Appeal Board tried to dismiss the Plaintiff’s appeal on April 29, 2003 on the following grounds: (a) after hearing the case as 2002 Won3746, the Intellectual Property Trial and Appeal Board rendered the instant decision of rejection.

(2) Summary of the grounds for the instant trial decision

(A) The trademark applied in this case can be seen as both the figure and the figure and each part as the essential part. The basic framework is the same in that both the figure and the cited trademark are composed of two shapes of the English alphab "C" shape on the one hand. However, although the trademark applied in this case is connected with the figure of the "C", the cited trademark are cross-sections, and there is a difference between the cited trademark in the middle of the applied trademark in this case, while there is a difference between the horizontal lines in the middle of the applied trademark in this case, the figure and the cited trademark in this case are similar and similar to each other in the case of observing the trademark applied in this case on the whole, objective, and separately, the designated goods are used for the designated goods, and there is a concern that general consumers or traders may mislead or confuse the source of goods.

(B) Therefore, the decision rejecting the registration falls under Article 7(1)7 of the Trademark Act, without examining whether the trademark in question falls under Article 7(1)9 and 10 of the Trademark Act.

2. The party's assertion as to the legitimacy of the trial decision of this case

A. Summary of the grounds for revocation of the Plaintiff’s trial decision

(1) Although the trademark applied in this case is merely a buriological figure, the cited trademark is significantly different from the cited trademark in the overall increase of the trademark.

(2) Since well-known trademarks, such as the cited trademarks, are widely and accurately known to consumers, the scope of their similarity should be narrow compared to the ordinary trademarks.

(3) Comparing the appearance of the applied trademark of this case and the cited trademark, the figure and text parts of the applied trademark of this case shall not be separated, but shall be compared as a whole.

(4) 이 사건 출원상표의 도형부분만을 분리하여 인용상표들과 비교한다 하더라도, 이 사건 출원상표가 알파벳 'C'를 좌우대칭으로 접하게 하고 가운데에 횡선을 둔 기하학적인 형태로 구성되어 있음에 비하여, 인용상표들은 알파벳 'C'를 좌우대칭으로 교차하게 하여 가운데에 타원이 형성되게 한 것으로서 전체적으로 깜찍한 리본의 형태를 띠고 있으므로, 이 사건 출원상표의 외관은 인용상표들의 외관과 다르고, 이 사건 출원상표의 도형부분이 특별한 관념이나 호칭이 없음에 반하여, 인용상표들은 그 주지저명성으로 인하여 '샤넬'로 관념 및 호칭될 것이므로, 이 사건 출원상표는 전체적, 이격적으로 관찰하였을 때 인용상표들과 유사하지 않다.

(5) Therefore, the trademark of this case does not fall under Article 7(1)7 of the Trademark Act.

B. Defendant’s assertion

(1) The figure portion and the letter portion of the applied trademark of this case do not create a special concept due to the combination, and it is difficult to view that the trademark of this case can be separated from the figure portion and the letter portion to the extent that it is natural if observed separately, and the trademark of this case can be observed separately. The basic framework is the same, and the overall visual increase is similar to the trademark of this case and the cited trademark of this case, in that the figure portion and the cited trademark of this case are composed of two shapes in the alphabac, “A” shape. Thus, the trademark of this case and the cited trademark of this case are very similar to the overall, objective, and ethic observation. Thus, the trademark of this case constitutes Article 7(1)7 of the Trademark Act.

(2) The applied trademark of this case was filed for the purpose of taking advantage of the reputation and credit of the cited trademark, which is a well-known trademark, and is similar to that of the cited trademark, and thus facilitating the cited trademark or its products from the applied trademark of this case, and causing misconception and confusion on the source of goods, as it is recognized that the cited trademark of this case was closely related to the cited trademark or its designated goods. Thus, the applied trademark of this case constitutes Article 7(1)10 of the Trademark Act.

3. Determination on the legitimacy of the instant trial decision

A. Whether it falls under Article 7(1)7 and 9 of the Trademark Act

(1) In order to fall under Article 7(1)7 and 9 of the Trademark Act, the trademark applied for registration must be identical or similar to the cited trademark. In general, the similarity of trademarks should be determined as to whether two trademarks used for the same kind of goods could cause mistake or confusion as to the source of goods in trade, even if one of their appearance, name, and concept is objectively, overall, and differently observed in terms of the third appearance, name, and concept. However, even if one of the names, concepts is similar, if it is possible to avoid confusion as to the source clearly as a whole, it shall not be deemed a similar trademark. On the contrary, if there is a difference between the names, letters, or diagrams, and it is easy for ordinary consumers to confuse or confuse with the cited trademark, the similarity of trademarks shall not be deemed a similar trademark, and if it is a combination of the two combined trademarks used for the same kind of goods, it shall not be deemed that it can be combined with the entire constituent parts, but only if it is natural that each constituent part can not be separated from one of them.

(2) On the other hand, the trademark applied in this case is composed of a combination of the letter and figure parts, and it is difficult to view that the combination does not create any special concept due to such combination, but it is indivisible to the extent that it is natural to observe the trademark applied in this case by separating it from it. Thus, the trademark applied in this case can be viewed as a part of figure and letter, and each part of which has equal distinctiveness.

Therefore, in comparison with the external appearance of the cited trademark of this case, the above trademarks are identical in that the two shapes of "A," in the shape of "C," are composed of two shapes of the English alphab, and they are placed at the left or right (in the absence of independent distinctiveness as it is the body of the trademark commonly used, it does not take into account in comparison with the applied trademark of this case). However, while the trademark of this case is in contact with "Aphabab," "C" in the form of a cross-section, the cited trademark is different in that it is formed by the alphab, "C" in the form of the alphab, and the two shapes of "C," which are adopted by the cited trademark as materials, are either simple composition of the trademark itself, but it is very unique from the appearance, and there is no difference between the two shapes and the center or the center of the trademark of this case, and therefore, whether the two shapes of the cited trademark are identical in the shape of the above cross-section.

On the other hand, since the figure portion of the applied trademark of this case and the cited trademark of this case do not form a special concept or name as a figure trademark, their concepts or names cannot be compared. It is clear that the letter portion of the applied trademark of this case and the cited trademark of this case are different or compared with their appearance, name, and concept.

(3) If so, the trademark applied in this case is not identical or similar to the cited trademark, and without examining the remaining requirements, the trademark applied in this case does not fall under Article 7 (1) 7 and 9 of the Trademark Act.

B. Whether it falls under Article 7 (1) 10 of the Trademark Act

(1) For the purpose of falling under Article 7(1)10 of the Trademark Act, even if the applied trademark is not similar to a well-known trademark, it should be a case where the trademark is not easily connected to a well-known trademark of another person or goods, etc. using the trademark, or is recognized as closely related to another person's trademark or goods and thus causes mistake or confusion as to the origin of goods (see, e.g., Supreme Court Decisions 92Hu1370, Mar. 23, 1993; 95Hu1173, Feb. 13, 1996).

(2) Therefore, as seen in paragraph (a) above, the figure of the applied trademark of this case and the cited trademark of this case are different, that is, whether or not the alphabac "C" are adjacent to or cross-sections in the central part, and the overall increase is different due to whether the central part is committed in good faith, and there is no other evidence to deem that there is a relation to the extent required in paragraph (1) above in its composition or Motib, etc., and even if the letters of the applied trademark of this case and the cited trademark of this case and the cited trademark of this case or the cited trademark of this case are compared with the whole cited trademark of this case, the conclusion is not changed.

(3) Therefore, the applied trademark of this case does not constitute a trademark without any need to examine the remaining requirements of Article 7(1)10 of the Trademark Act.

C. Sub-committee

Thus, the trademark applied in this case does not fall under Article 7 (1) 7, 9, and 10 of the Trademark Act in relation to the cited trademark, and the decision of this case is unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Of Kimchi (Presiding Judge)