A. The point of time to determine whether “a trademark likely to mislead or mislead consumers as to the quality of goods” falls under Article 9(1)11 of the former Trademark Act (wholly amended by Act No. 4210, Jan. 13, 1990) that provides as one of the non-registered trademarks (=the time of trademark registration ruling)

(b) requirements to invalidate trademark registration on the grounds that the trademark falls under paragraph (a) of the aforesaid Article.

(c) The case holding that even if a trademark similar to the cited trademark is used on the designated goods, it may not be deemed that the trademark is widely known to the extent that it could be immediately perceived as the trademark of the cited trademark right holder if it is acknowledged that the cited trademark had been advertised for more than 4,5 years prior to the registration of the trademark, but at the time of the decision on the registration of the trademark, the trademark is not likely to mislead general consumers or traders by causing mistake as to the cited trademark holder's goods as the cited trademark holder's goods.

A. Whether a trademark constitutes “a trademark likely to mislead or mislead consumers as to the quality of goods” under Article 9(1)11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), shall be determined on the basis of the time when the trademark registration ruling is rendered.

B. In order to invalidate a trademark registration by a trial on the grounds that the trademark registration is similar to the registered trademark of another person whose designated goods are different, and thus, there is a concern that general consumers or traders might be misled as to the origin of goods, and thus, it constitutes the case where the trademark is registered in violation of Article 9(1)11 of the Act, the registered trademark of another person needs to be widely known as the trademark of another person to the extent that it can be perceived as the trademark of a specific person if it is between domestic consumers or traders.

(c) The case holding that even if a trademark similar to the cited trademark is used on the designated goods, it may not be said that there is a concern that the ordinary consumer or trader might deceive the cited trademark as the goods of the cited trademark right holder, even if it is used on the cited goods because it is difficult to view that the quoted trademark is widely known to the extent that it would be immediately perceived as the trademark of the quoted trademark right holder or trader even though it is recognized that the cited trademark was displayed for more than 4,5 years prior to the registration of the trademark "Ge1".

Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

A.B. Supreme Court Decision 92Hu278 delivered on July 28, 1992 (Gong1992,2670). Supreme Court Decision 89Hu1677 delivered on May 11, 1990 (Gong1990,1263). Supreme Court Decision 92Hu797 delivered on January 12, 1993 (Gong1993,729). Supreme Court Decision 92Hu674 delivered on February 9, 1993 (Gong193,978)

Samsung C&T Co., Ltd., Counsel for defendant-appellant

Dong-gu Seoul High Court Decision 201Na1448 delivered on August 1, 201

Korean Intellectual Property Office Appeal Trial Office 458 decided Oct. 31, 1992

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

1. Judgment on the ground of appeal No. 1 by the claimant-appellant

Whether a trademark constitutes “a trademark likely to mislead consumers as to the quality of goods or to mislead consumers” under Article 9(1)11 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereafter referred to as the “Act”) shall be determined on the basis of the time when a decision on trademark registration is rendered against an application for trademark registration (see, e.g., Supreme Court Decision 89Hu1677, May 11, 1990; Supreme Court Decision 92Hu278, Jul. 28, 1992; 92Hu278, Jul. 28, 1992); therefore, it is not acceptable to criticize the original decision on the basis of an independent opinion that the decision on trademark registration invalidation is to be made at the time of a trial decision on a petition for trademark registration invalidation.

2. Determination on the ground of appeal No. 2

The purpose of Article 9(1) of the Act is not to protect another person’s registered trademark by earlier application, but to prevent mistake or confusion between ordinary consumers or traders regarding the quality and origin of goods using a trademark widely recognized as a trademark. Thus, if a claimant intends to invalidate a registered trademark on the ground that it is similar to the other person’s registered trademark, and thus, it would be likely that general consumers or traders would be affected by mistake or confusion as to the origin of goods. Thus, the court below’s determination that the registered trademark constitutes a trademark in violation of the provisions of Article 9(1)11 of the Act, and thus, it is difficult to acknowledge that the registered trademark is widely known to the extent that it would be recognizable as a trademark by the general consumers or traders (see, e.g., Supreme Court Decision 200Hu9797, Jul. 28, 1992; 2001Hu9797, Jul. 197, 207). 197;

3. Determination on the ground of appeal No. 3

Even though a claimant is a famous company as one of the general trade companies in Korea, such facts alone cannot be readily concluded that the cited trademark was widely known in Korea as at the time when the trademark registration ruling was rendered with respect to the trademark of this case, if the cited trademark was widely known in Korea as at the time when the trademark registration ruling was rendered on the trademark of this case, and even according to the record, there is no evidence that the quality of the goods produced by the claimant is not always better than the goods produced by the claimant. Thus, even if the respondent uses the trademark of this case similar to the cited trademark for the designated goods, it cannot be said that there is no possibility that ordinary consumers or traders mistake or are only aware of the quality of the goods produced by the claimant as goods of high quality. There is no reason to present this issue.

4. Determination on the ground of appeal No. 4

Nos. 3-6 and Nos. 23 are written only on the basis of the descriptions of Gap's evidence 3-6 and Gap's evidence 23, as in the theory of the lawsuit, it is not recognized that the visibility, which is the designated goods of the cited trademark, is related to the goods of the cited trademark, and in the case of the goods of the trademark of this case, using the same trademark is the actual condition of the transaction

5. Therefore, the appeal by the claimant 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.

Justices Yoon-young (Presiding Justice)