[1] Whether the applied trademark "BOSS +AUDIO SYS YTSM" and the cited trademark "HUGO + HUGO BOSS" are similar (affirmative)

[2] Purport of Article 51 subparagraph 1 of the Trademark Act

[3] Whether the eligibility for registration of a trademark is attributable to the registration of another trademark (negative)

[1] If the cited trademark "HUGO + HUGO BOSS" is an abbreviationd and conceptualized only with "BOSS" which is the rear part of the lower bottom, the trademark applied for registration is identical with "BOSS" of "BOSS" of "BOSS" of "BOSS" of "BOSS" and "YSS" of "BOSS" of "BOSS" of the applied trademark, and the two trademarks are eventually similar. In relation to the designated goods, the designated goods of the two trademarks are goods belonging to the telecommunications machinery and equipment of Category 39-7 of the former product classification, which are goods similar to the goods in light of the basic use of the goods, manufacturer, end-user's view, etc., so the applied trademark cannot be registered under Article 7 (1) 7 of the Trademark

[2] The purport of Article 51 subparagraph 1 of the Trademark Act is that even if a trademark is identical or similar to the registered trademark, the effect of the registered trademark right is restricted as to the trademark indicating his/her name, etc. in a common way, thereby preventing the owner of the registered trademark from using the trademark, and it does not restrict the effect of the registered trademark right on the ground that the registered trademark expresses his/her name.

[3] Whether a trademark is eligible for registration shall be determined individually according to each trademark in relation to the designated goods, and it shall not be subject to registration of other trademarks.

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 51 subparagraph 1 of the Trademark Act / [3] Article 7 (1) 7 of the Trademark Act

[3] Supreme Court Decision 96Hu1170 delivered on March 28, 1997 (Gong1997Sang, 1239), Supreme Court Decision 98Hu2924 delivered on April 23, 199 (Gong199Sang, 1053), Supreme Court Decision 98Hu1143 delivered on June 8, 199 (Gong199Ha, 1415), Supreme Court Decision 97Hu2453 delivered on October 26, 199 (Gong199Ha, 2426), Supreme Court Decision 9Hu2907 delivered on April 21, 200 (Gong200Sang, 1300)

E.B. E.B Rozz Corrotra (Patent Attorney Park Yong-sik, Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 200Heo1375 delivered on June 23, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The court below held that the trademark applied for registration of this case is divided into upper and lower parts under the overall composition of the mark, and that the term "AUDISSSSSSSSSSSS", which is the lower part, is generally used in relation to the designated goods of the applied trademark of this case, and therefore, the essential part of the trademark applied for registration of this case is "BOSS", while the cited trademark (registration number omitted) is indicated in the lower part of "HUGO BOSS" rather than the part of "HUGOOOS" as a whole, it cannot be viewed as the part without any distinctive character because it is divided into upper and lower parts, and it cannot be seen as the designated goods of this case, which are similar to the trademark of this case, in light of the above legal principles as to goods of this case, "the trademark of this case" and "the goods of this case cannot be seen as being combined with the concept of "the goods of this case" under Article 7 of the former Trademark Act and "the trademark of this case" cannot be seen and lower part".

2. The purport of Article 51 subparagraph 1 of the Trademark Act is that even if a trademark is identical or similar to the registered trademark, the effect of the registered trademark right is restricted as to the trademark indicating one's name, etc. in a common way, and it does not restrict the effect of the registered trademark right because the registered trademark is an official commendation of the name of the registered trademark right holder. Thus, even if the registration of the applied trademark of this case is refused based on the HUGO BOSS portion of the cited trademark, it does not violate Article 51 subparagraph 1 of the Trademark Act. This part of the grounds for appeal is rejected.

3. Whether a trademark is eligible to be registered or not shall be determined individually in accordance with each trademark in relation to the designated product (see, e.g., Supreme Court Decisions 98Hu2924, Apr. 23, 1999; 98Hu1143, Jun. 8, 1999). This part of the grounds for appeal is also unacceptable.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Zwon (Presiding Justice)