A. Purport and application of Article 9(1)11 of the former Trademark Act

B. Whether the same or similar nature of the designated goods is necessary for the application of Article 9(1)11 of the former Trademark Act

(c) Whether the product is similar to any other product, such as the hard cases and sirens, shots, plugs, etc.;

A. The purport of Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990) provides that a trademark that is likely to deceive consumers shall not be registered, is not to protect the existing trademark, but to prevent misconceptions or confusions among general consumers 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, if it is known to the extent that it can be perceived as a specific person's goods or a trademark if the goods or the trademark is goods or a trademark in domestic ordinary transactions, not to protect the existing trademark, it shall be subject to the said provision.

B. Even if it is known that a specific trademark cannot be said to be a well-known and well-known trademark, at least to be recognized as a trademark for a specific person by general consumers in the Republic of Korea, and thus, is subject to the latter part of Article 9(1)11 of the former Trademark Act, there may be concerns for general consumers to mislead or confuse the source of goods only when a trademark identical or similar to such trademark is used on the designated goods identical or similar to the identical or similar trademark.

C. Not designated goods of the registered trademark, and sirens, hings, and flass, as designated goods of the quoted trademark (i.e., the designated goods) are different in quality or shape. However, in use, it cannot be viewed that the number of tampers, hings, and flass, which are sections of the same section, cannot be viewed as completely different from those of those of the same section, and in particular, if the registered trademark similar to the quoted trademark (i) is used for cases, etc. where it is similar to those of the cited trademark, it is reasonable to deem that the registered trademark is similar to those of the cited trademark, and therefore, it is likely that ordinary consumers might mislead or confuse the source thereof.

Article 9(1)11 of the former Trademark Act (wholly amended by Act No. 4210, Jan. 13, 1990; see current Article 7(1)11)

A. (B) Supreme Court Decision 90Hu649 delivered on December 7, 1990 (Gong1991,480), 90Hu311 delivered on January 11, 1991 (Gong1991,749). Supreme Court Decision 92Hu278 delivered on July 28, 1992 (Gong1992,2670), 92Hu674 delivered on February 9, 193 (Gong1993Ha, 978), 93Hu1131 delivered on May 13, 1994 (Gong194Sang, 1702)

가부시키가이샤 야마시다 고교켄큐쇼 소송대리인 변리사 김명신 외 1인

Patent Attorney Yang Jae-hoon, Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 92Hun-Ba244 dated January 28, 1995

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

(1) As to ground of appeal No. 1

The purport of Article 9 (1) 11 of the former Trademark Act (wholly amended by Act No. 4210, Jan. 13, 1990; hereinafter the same) provides that a trademark that may mislead consumers shall not be registered shall not be for protection of the existing trademark, but for protection of trust in the quality, source, etc. of goods using a trademark already recognized as a trademark of a specific person by preventing misconception and confusion among ordinary consumers. Thus, if it is known to the extent that the goods or the trademark must be well known and well-known and well-known, and at least that it can be perceived as goods or the trademark of a specific person if it is known to the general consumers or traders in Korea (see, e.g., Supreme Court Decisions 90Hu649, Dec. 7, 1990; 92Hu674, Feb. 9, 1993; 92Hu13131, May 13, 1994).

According to the reasoning of the original decision, the court below acknowledged the fact that the cited trademark (1) of the claimant was considerably known in Japan and other foreign countries, etc. by his macroscopic evidences, and the claimant entered Korea on July 1, 1986 that the cited trademark (1) of the claimant was considerably known in Japan, etc., and that the plaintiff entered Korea through five (5) years from February 9, 1987 to September 18, 1991 and entered into a contract with the Samjin Commercial Co., Ltd. of the Republic of Korea with five (5) companies and five (1) years from September 1991, 1987, and entered Korea with five (915,762, 9,107, and 1.520,000,000 won of the quoted trademark (1) with five (1) companies such as scopic books, etc., and determined that there was no error in the misapprehension of legal principles and records.

(2) As to the second ground for appeal

Even though it is not possible to regard a well-known or well-known trademark as a well-known trademark, it is known to the extent that it can be recognized as a trademark of a specific person to the general consumers in Korea, and thus, is subject to the latter part of Article 9(1)11 of the former Trademark Act, even if a trademark identical or similar to such trademark is used for the designated goods identical or similar to the identical or similar trademark, it may be said that there may be concerns for general consumers to confuse consumers by misconception or confusion about the source of goods (see, e.g., Supreme Court Decisions 91Hu462, Dec. 24, 191; 94Hu1527, Feb. 3, 1995; 95Hu231, Jul. 14, 1995).

According to the records, it is reasonable to view that the registered trademark of this case, which is the designated goods of the cited trademark (1) as the designated goods of the cited trademark (1), is not identical in quality or shape. However, in its use, it cannot be viewed that the registered trademark of this case, which is similar to the cited trademark, is a product similar to that of the designated goods, because it is not identical in terms of the actual condition of the transaction, such as cases and tools, sirens, piracy, and flass, which are not identical in quality or shape. Therefore, if the registered trademark of this case, which is similar to the cited trademark (1), is used in a similar case, it is likely that ordinary consumers may cause mistake or confusion as to its source. Although it is somewhat insufficient in the original trial decision on its reasoning, it is justifiable to determine that the registered trademark of this case constitutes the provision of Article 9 (1) 11 of the former Trademark Act, and there is no error in the misapprehension of legal principles of Article 9 (1) 1 of the former Trademark Act or in failing to exhaust all necessary deliberations.

(3) Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)