The case holding that since the pre-use trademarks obtained well-knownness among domestic consumers, and the "ging clothes, golf banks, etc.", which are the goods used by them, have a considerable economic relation not only with "ging" among the designated goods of the registered trademark, but also with "tegrification, grification, etc.", if they are used on the above designated goods, ordinary consumers might cause misconception or confusion about the source of goods as they are used by the pre-use trademarks owner, and thus, consumers might be confused with the above designated goods.

Article 7 (1) 11 of the Trademark Act

Schlage Co., Ltd. (Patent Attorney Ansan-gu, Counsel for the defendant-appellant)

One person other than the decoration and decoration (Patent Attorney Park Yong-hwan, Counsel for the plaintiff-appellant)

Patent Court Decision 2007Heo10583 Decided April 8, 2008

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Patent Court. All appeals by the Defendants are dismissed.

The grounds of appeal by the plaintiff and the defendants are examined together (the supplemental grounds submitted after the expiration of the submission period shall be limited to the supplement in case of supplement).

1. For the purpose of the latter part of Article 7(1)11 of the Trademark Act to be “a trademark likely to mislead or confuse consumers”, the comparative trademark (pre-use trademark) or its products are not necessarily known and identified, but at least, it should be known to the extent that consumers or traders can be perceived as a trademark or goods of a specific person if they are used in domestic general trade. In such a case, if a trademark identical or similar to the comparative trademark is used for the designated goods identical or similar to the above products, it may cause general consumers to mislead or confuse the origin of the goods under the above provision. Meanwhile, in light of the above provision’s purpose of protecting trust in the source of goods using the trademark already recognized as a specific person’s trademark, any trademark is identical or similar to the comparative trademark, specific circumstances of the comparative trademark, economic degree between the goods using the comparative trademark, and other similar circumstances, even if it appears to be identical or similar to the comparative trademark 97, it would not be deemed that the comparative trademark is identical or similar to the designated goods used by the general consumers.

2. According to the reasoning of the judgment below and the records, since around 1983, the plaintiff company sold products such as golf type, golf class, golf class, golf class, golf class, golf class, golf class, etc. with the pre-use trademarks attached to the judgment of the court below through agencies or department stores across the country. The plaintiff company discontinued the use of pre-use trademarks with regard to golf type since it was given a warning from the defendants to infringe on the registered trademark rights. Sales amount of golf class, etc. of the plaintiff company from 1995 to 1999, 307.6 billion won, 74.5 billion won, 200, 8.5 billion won, 2002, 12.8 billion won, 2003, 13.4 billion won, 200 billion won, 200 billion won, 3 billion won, 200 billion won, and 2.3 billion won, 3 billion won, 200 billion won, 209.

In addition, in relation to the designated goods of the pre-use trademark of the registered trademark of this case, new shoes such as "themeization, stringization, camping, camping, gyms, golfization, gymization, skiingization, skiingization, skilization, work-making, and booming (hereinafter "designated goods of this case"), which are the designated goods of the registered trademark of this case, and golf type as the designated goods of the pre-use trademarks, and golf type as the designated goods of the pre-use trademarks, golf course, golf banks, etc. are not identical or similar goods. However, the "gyms" used by the pre-use trademarks is not necessarily for golf games, but only for golf games, but for the case of naturally wearing them out or in daily clothes due to the booming of wearing, it is difficult to consider the economic situation of the new clothes such as clothing and gyms, such as general clothing, such as golf products, and golfization, gymization, gys, etc., and the sale of the new clothes.

Therefore, as above, the pre-use trademarks acquired well-knownness between domestic consumers, and among the goods used by the pre-use trademarks, “gymnas, golf bags, etc.” and the designated goods of the instant registered trademark, there are close economic connections between “gymnasization, gymnasization, gymnasization, gymnasization, gymnasization, gymnasization, symnasization, symnasization, and gymnasium.” Since the above used goods and the above used goods are of considerable economic relationship between “tesization, gymnasization, gymnasization, gymnasization, etc.,” if the Defendants used the instant registered trademark on the designated goods of this case, general consumers are likely to cause misconception or confusion

Therefore, the part of the judgment below which held that the pre-use trademarks were widely known as trademark of a specific person is somewhat inappropriate. However, the court below's conclusion is just in holding that the registered trademark of this case is likely to mislead or confuse consumers as to the source of goods because it is likely to be used by the holder of the pre-use trademarks to the extent that it is not used for goods similar to golf kinds or golf banks if it is used for the "golization" among the designated goods. There is no error in the misapprehension of legal principles as alleged in the grounds of appeal by the Defendants, such as misunderstanding of facts, which affected the conclusion of the judgment, but there is no error in the misapprehension of legal principles as to the remaining designated goods of the registered trademark of this case, and there is no error in the misapprehension of legal principles as to Article 17 (1) of the Trademark Act even if the registered trademark of this case is used for the goods of this case, which are the remaining designated goods of the registered trademark of this case.

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendants’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)