[1] Whether a trademark which imitates a cited trademark which is neither well nor well-known nor well-known and applied for different designated goods constitutes "a trademark which disturbs public order or good customs" under Article 7 (1) 4 of the Trademark Act (negative)

[2] The elements for applying Article 7 (1) 11 of the Trademark Act to the applied trademark where the cited trademark is not an well-known or well-known trademark

[1] For the purpose of Article 7 (1) 4 of the Trademark Act, "trademarks which are contrary to the public order or good customs" refers to the case where the composition of the trademark itself or where the trademark is used for the designated goods, its meaning or contents to the general consumers are contrary to the public order and good customs, which is the normal moral sense of the general public. If the cited trademark is not well-known and well-known, it does not constitute Article 7 (1) 4 of the Trademark Act, even if the quoted trademark is creative, and it does not constitute the case where the quoted trademark is applied for a different designated goods.

[2] For the purpose of "a trademark likely to mislead or mislead consumers" as referred to in Article 7 (1) 11 of the Trademark Act, although the cited trademark or its goods are not necessarily well-known or well-known, it should be so known that consumers or traders can be recognized as a trademark if they are goods or trademarks of a specific person in general domestic trade at least in Korea. In such a case, only when a trademark identical or similar to the quoted trademark is used in the same product, it may be said that there is a concern for ordinary consumers to mislead or confuse the source of goods under the above provision. Furthermore, in light of the purpose of the above provision, in order to prevent misconception or confusion of the general consumers as to the source of goods, etc. using the trademark already recognized as a specific person's trademark, and to protect the trust thereof, if it is known to the extent that the cited trademark can be widely known among general consumers to the extent that it is recognizable as a trademark of a specific person, and if it is not identical or similar to the cited trademark, it shall be deemed that the trademark is identical or similar to the cited trademark, or similar to the trademark, and if it appears to the general consumers' use of goods.

[1] Article 7 (1) 4 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act

[1] [2] Supreme Court Decision 96Hu2296 delivered on October 14, 1997 (Gong1997Ha, 3467), Supreme Court Decision 97Hu228 delivered on November 28, 1997 (Gong1998Sang, 107), Supreme Court Decision 97Hu1153 delivered on December 12, 1997 (Gong1998Sang, 298) / [2] Supreme Court Decision 96Hu412 delivered on March 14, 1997 (Gong197Sang, 111), Supreme Court Decision 97Hu334 delivered on August 29, 197 (Gong197Ha, 289)

Pakistan Co., Ltd. (Patent Attorney Kim Young-soo, Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 96Na623 dated March 31, 1997

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

1. According to the reasoning of the court below's decision, the court below affirmed the application of this case's trademark (application on July 5, 1994, designated goods are identical in terms of the name and concept, and the creative figure of the cited trademark is extremely similar to the original trademark, even if the original trademark is used differently from the cited trademark, it is likely for consumers to mislead or confuse general consumers as to the origin and quality of goods if two trademarks are used together, because it is likely to recognize the original trademark as goods produced and sold by the cited trademark right holder or its specially related person, or the basis of the trademark system, and such imitate trademark cannot be permitted. The application of this case's trademark (application on July 5, 1994, 199) and the cited trademark "PATRD" are identical in terms of the name and concept, and it is extremely similar to the original trademark's creative figure in terms of the cited trademark's creative figure in terms of the original trademark's creative figure in practice.

2. A. For the purpose of Article 7(1)4 of the Trademark Act, the term "trademarks which are contrary to the public order or good customs" refers to cases where the composition of the trademark itself or where the trademark is used on the designated goods, their meanings or contents to the general consumers are contrary to the public order and good customs, which are the normal moral sense of the general public. If the cited trademark is not well-known or well-known, even if the quoted trademark is creative, the cited trademark itself cannot be deemed to fall under Article 7(1)4 of the Trademark Act by reproducing it and filing a different application for designated goods (see Supreme Court Decision 96Hu296, Oct. 14, 1997).

Nevertheless, the court below did not examine whether the cited trademark was well-known or well-known, and judged that the trademark constitutes Article 7 (1) 4 of the Trademark Act. Thus, the court below erred by misapprehending the legal principles as to the above trademark law and failing to exhaust all necessary deliberations, which affected the result of the trial decision. Thus, the ground of appeal pointing this out has merit.

B. For the purpose of "a trademark likely to mislead consumers" as referred to in Article 7 (1) 11 of the Trademark Act. Although the cited trademark or its goods are not necessarily well-known and well-known, it should be so known that at least if they are goods or trademarks in general transactions in the Republic of Korea, they can be perceived as goods or trademarks of a specific person. In such a case, only if a trademark identical or similar to the quoted trademark is used in the same goods, it may be said that there is concern for general consumers to mislead or confuse the origin of the goods under the above provision. Meanwhile, if the cited trademark is acquired well-known by widely known to all the general public other than the traders in relation to the goods, it shall be deemed that the trademark is produced or sold by a well-known or specially related person, and if it is not widely known to general consumers as to the origin of the goods or its goods, it shall be deemed that the trademark is not likely to mislead or confuse the general consumers as to the origin of the goods or its use of the trademark, in light of the purpose of the trademark's use or sale of the goods.

Therefore, the court below should have examined whether there are special circumstances that could be mistaken for the cited trademark right holder to the extent that the cited trademark is used for goods identical with or similar to the cited trademark's goods in light of the following: (a) whether the cited trademark is well-known or well-known or well-known; (b) whether the cited trademark falls under Article 7 (1) 11 of the Trademark Act; and (c) whether the cited trademark is recognizable to consumers or traders at least in domestic general transactions; and (d) whether the cited trademark is used for goods identical with or similar to the cited trademark's goods; and (e) whether the cited trademark is used by the cited trademark right holder to the extent that the cited trademark's use is not possible; and (e) whether the cited trademark falls under Article 7 (1) 11 of the Trademark Act; and (e) whether the cited trademark is identical or extremely similar to the cited trademark's appearance, name, and concept; and (e) whether the cited trademark is identical with or similar to the cited trademark's goods; and (e) whether there are special grounds for appeal concerning the cited of the trademark's and the origin of the trademark's.

3. Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)