The case holding that the use of the mark " " cannot be deemed as the use of a mark in a form identical with the registered trademark in light of the common sense of the trade society, since the distinctiveness of the part " " among the marks " " cannot be denied," which is separate from the registered service mark " "," and thus, can not be deemed as an independent mark separate from the registered service mark "."

Article 73(1)3 of the Trademark Act

Non-junden system (Law Firm Daba, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant

Patent Court Decision 2007Heo6539 Decided January 9, 2008

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

In light of the records, the registered service mark of this case (registration No. 44034) consists of “” with the designated service business as publishing business, etc., and the actual use mark used in “publication business” consists of “”. Of the actual use mark, the aforementioned part of the “” portion of the actual use mark is continuously and continuously divided in size as “the general consumers’ attention,” and is almost the same as the part of “”, and it is considerable in proportion to the whole of the actual use mark, and thus, it cannot be deemed as a simple supplementary part of the text portion. In addition, under the premise that the registration mark of this case is an independent service mark separate from the registered service mark of this case before the application for the registration of this case and the use of the registered service mark of this case, the registration (registration No. 31979) is applied to the Korean Intellectual Property Office on the premise that it is an independent service mark separate from the registered service mark of this case and thus, it cannot be viewed as a trademark separate from the registered service mark of this case and thus, it cannot be viewed as a trademark separate from the registered service mark of this case.

Therefore, even if the defendant used the mark in actual use for the designated service business of the registered service mark of this case, it cannot be deemed as the use of the mark in the same form as the registered service mark of this case, the judgment below erred by misapprehending the legal principles as to the use of the service mark, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)