[1] Criteria for recognition of trademarks which are likely to deceive consumers

[2] The standard time for determining a trademark that is likely to deceive consumers

[3] Whether it constitutes a ground for invalidation of trademark registration to prevent another person from importing and selling a trademark in our country by copying a trademark of a foreign country (negative)

[1] The legislative intent of Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) is not to protect the existing trademark, but to prevent general consumers from misunderstanding and confusion about the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person, and to protect the trust thereof. Thus, it is necessary to be known to the extent that the quoted trademark is not necessarily known and recognizable, but at least to the extent that it can be perceived as a trademark or goods of a specific person if it is a trademark or goods in general transactions in the Republic of Korea.

[2] In order to refuse the registration of a trademark on the ground that it falls under Article 9(1)11 of the former Trademark Act, it is necessary to have the registered trademark (personal trademark) widely known among general consumers or traders as the trademark of another person on the basis of the time when the trademark registration is rendered or a trial decision to permit the trademark registration is rendered.

[3] The respondent is a person who has no relation with the cited trademark and illegally imports the quibol, which is illegally imported from Hong Kong, which is the third country, without going through the regular import procedure, and obtains the registration of the cited trademark from the Hong Kong, and then makes an application for trademark registration in our country, and then prevents the claimant from entering into an agency contract with the cited trademark right and selling the quibol drugs in a regular manner. The reason is that it contributes to the industrial development through the maintenance of business credit, and it goes against the purpose of the Trademark Act to protect the interests of consumers and international commercial order, which stipulates the invalidation of the trademark, does not fall under any provision of Article 46 of the former Trademark Act, which provides for the invalidation of the trademark.

[1] Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (see Article 7 (1) 11 of the current Trademark Act) / [2] Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (see Article 7 (1) 11 of the current Trademark Act) / [3] Article 46 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) (see Article 71 (1) of the current Trademark Act)

[1] Supreme Court Decision 90Hu649 delivered on December 7, 1990 (Gong1991, 480), Supreme Court Decision 92Hu674 delivered on February 9, 1993 (Gong1993Sang, 978), Supreme Court Decision 93Hu1131 delivered on May 13, 1994 (Gong1994Sang, 1702), Supreme Court Decision 95Hu477 delivered on October 12, 1995 (Gong195Ha, 3784) / [2] Supreme Court Decision 86Hu156 delivered on March 10, 1987 (Gong1987, 648), Supreme Court Decision 87Hu5289 delivered on December 22, 1987 (Gong1968, Nov. 38, 197)

Senior Drugs Co., Ltd. (Patent Attorney Kim Jong-sik, Counsel for the defendant-appellant)

Effective Rouritius Co., Ltd.

Korean Intellectual Property Office Decision 92Na376 dated April 20, 1995

The appeal is dismissed. All costs of appeal are assessed against the claimant.

The grounds of appeal are examined.

1. As to the fact that the quoted trademark is well-known trademark

According to the records, as of March 8, 1989, the date of the application for the registered trademark of this case (No. 194761), the cited trademark (No. 217034, Dec. 15, 1984; hereinafter the same) was advertised or advertised in our country, or there is no evidence to prove that the cited trademark was widely imported or sold to a considerable extent, and there is no other evidence to acknowledge that the cited trademark was widely known or well-known in its country at that time. Thus, the recognition and determination of the court below to the same purport is just, and there is no other evidence to acknowledge it. There is no error in the misapprehension of the legal principles as to the well-known trademark or well-known trademark. The ground of appeal on the premise that the cited trademark is well-known or well-known trademark is without merit.

2. As to the assertion that the registered trademark of this case is likely to mislead consumers

The legislative intent of Article 9(1)11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990; hereinafter the same) is not to protect the existing trademark, but to prevent general consumers from misunderstanding and confusion about the quality, origin, etc. of goods using a trademark recognized as a trademark of a specific person, and to protect the trust thereof. Thus, it is necessary to be known to the extent that it is possible to recognize consumers as a trademark or goods of a specific person at least in general transactions in Korea (see Supreme Court Decision 95Hu477, Oct. 12, 195, etc.). In order to refuse a trademark registration on the ground that it falls under the above provision, it is necessary to widely recognize the trademark of another person as a trademark (see Supreme Court Decision 95Hu477, Oct. 12, 1995; 200, at the time of a decision to permit a trademark registration or at the time of granting a trial decision to grant a trademark registration.

According to the records, until June 13, 1990, which is the date of the registration ruling of the trademark of this case, the quilebleble, which is the designated goods of the cited trademark, was imported in 2-3 times (no evidence exists to deem the mark as a cited trademark), and the fact that the Ministry of Health and Welfare instructs the collection and disposal of quiblebleble, which is not imported in a fixed manner on October 1990 after the registration, and has no effect (no evidence exists to deem the mark of this product as similar to the cited trademark). Such circumstance alone is difficult to deem that the quoted trademark is a product or a trademark of a specific person if it is a product or a trademark in domestic ordinary trade, and there is no other evidence to acknowledge it (no evidence to recognize that the cited trademark was advertised or advertised through the advertising media, and no further evidence to recognize that the cited trademark is widely known to ordinary consumers or traders during a short period of time due to the figure alone).

In the above purport, although the court below's decision that the registered trademark of this case is not a trademark that is likely to mislead consumers as stipulated in Article 9 (1) 11 of the former Trademark Act is somewhat insufficient, the decision of the court below is just in its decision, and there is no error of law by misunderstanding the legal principles of the above provision, but the decision of the court below is not proper in its decision.

3. As to the assertion that the purpose of the Trademark Act or the international commercial transaction order has been violated

In short, the purport of the claimant's ground of appeal is to prevent the claimant from entering into an agency contract with the cited trademark right holder and importing quibane drugs in the form of a regular manner, and it goes against the purpose of the Trademark Act and the international commercial order to protect the benefit of consumers, without going through regular import process. The claimant's ground of appeal is that it is against the purpose of the Trademark Act and the international commercial order to protect the benefit of consumers.

However, this argument is obvious that the claimant's first assertion was not made in the court of final appeal, and it cannot be a legitimate ground of final appeal. This argument is clear that the above ground of final appeal does not fall under any of the provisions of Article 46 of the former Trademark Act, which provides the grounds for invalidation of a registered trademark. Thus, it is clear that the above ground of final appeal is without merit.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the claimant who has lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)