[1] Criteria for determining similarity of service marks

[2] Whether the part which combines a non-distinctive element in the composition of a service mark constitutes a non-distinctive mark if it is not a case where a new concept or distinctive character is formed (affirmative)

[3] Whether the service mark "new-use mother-and-child diagrams +MR. PZA + or Nexion-and-child diagrams" and "baker-and-child diagrams £« ＋ PZA" are similar to the service mark (negative)

[1] Whether it is similar to a service mark should be determined by whether it is likely to mislead or confuse the source of a service business by observing two service marks used for the same kind of service business in terms of appearance, name, concept, etc. based on the direct perception that ordinary consumers or traders feel with respect to the service mark. Even in the case of observing the service mark as a whole, it should be determined whether it is similar in preparation for an easily recognizable distinctive part leading consumers' attention, except for the ordinary name of the designated service business, the mark, the technical mark, the mark of the business type, and other non-distinctive parts.

[2] If there is a combination of non-distinctive elements among the composition of a service mark, such combination constitutes a mark which does not enable consumers to distinguish where it indicates a service business, unless it is particularly a case where a new concept or a distinctive character is formed by such combination.

[3] In comparison with the cited service mark applied for and registered as a "self-management business", the registered service mark "MR. PZA + Nexta ＋ PZA + the designated service business" and the designated service business "cat, Kapetland business, lecin service restaurant business, Japanese restaurant business, Japanese entertainment tavern business, general entertainment tavern business, restaurant business, restaurant business, cafeteria business, etc.", the cited service mark "bat fat fat fat fat fat fat fat fat fat fat fat ," which is applied and registered as the registered service mark "," and it is difficult to see that the service mark "cat fat fat fat fat fat fat fat fat fat fat fat fat ," and it cannot be viewed that there is a new concept of "distinctiveness between consumers" and the service mark "distinctive fat fat fat fat fat fat.

[1] Articles 6(1)7 and 7(1)7 of the Trademark Act / [2] Article 6(1)7 of the Trademark Act / [3] Article 6(1)7 of the Trademark Act

[1] Supreme Court Decision 97Hu1887 delivered on April 24, 1998 (Gong1998Sang, 1506), Supreme Court Decision 97Hu2804 delivered on October 13, 1998 (Gong1998Ha, 2693), Supreme Court Decision 98Hu874 delivered on April 23, 199 (Gong199Sang, 1051), Supreme Court Decision 98Hu2382 delivered on July 23, 199 (Gong1999Ha, 1787), Supreme Court Decision 97Hu3197 delivered on October 8, 199 (Gong199, 2327) / [23] Supreme Court Decision 97Hu1979 delivered on April 29, 197 (Gong199, 297Ha, 197) / [23] Supreme Court Decision 97Hu197979 delivered on May 297, 1997

Korea Sicker Co., Ltd. (Patent Attorney Jincheon-gu et al., Counsel for the defendant-appellant)

Appellant (Patent Attorney Seo Sang-chul, Counsel for defendant-appellant)

Korean Intellectual Property Trial Office Decision 95Na368 dated September 30, 1997

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

Whether a service mark is similar or not should be determined by the overall, objective, and apart from the perspective of appearance, name, and concept, etc. of two service marks used for the same kind of service business, and on the basis of the direct perception that ordinary consumers or traders feel with respect to the service mark, whether it is likely to mislead or confuse the source of the service business. Even in the case of the overall observation of the service mark, the similarity of the designated service mark shall be determined by preparing for similarity of distinctive parts, which might lead to consumer's attention, with the exception of ordinary names, tolerance marks, technical marks, type of marks, and other non-distinctive marks (see, e.g., Supreme Court Decisions 97Hu187, Apr. 24, 1998; 97Hu2804, Oct. 13, 198; 98Hu874, Apr. 23, 199; 98Hu389, Jul. 23, 199; 198Hu39839, Jul. 198, 1999.

In addition, if a service mark contains a combination of non-distinctive elements, such combination constitutes a mark that does not enable consumers to recognize whose business it indicates a service business, unless it forms a particularly new concept or distinctive character (see, e.g., Supreme Court Decisions 96Hu1477, May 30, 1997; 96Hu1866, Jun. 24, 197; 96Hu2241, Jun. 27, 197; 97Hu75, Jul. 8, 1997; 97Hu310, Feb. 27, 1998).

The court below determined that the registered service mark of this case (registration No. 1 omitted), registered on July 14, 1993, and the designated service mark of this case (registration No. 1 omitted; hereinafter referred to as the "registered service mark") registered on Sep. 18, 1990, constitute "Ka Pata, Carpeta, Leba, Lebac, Latac, Latacingf restaurant business, Japanese restaurant business, Japanese restaurant business, general entertainment tavern business, general entertainment tavern business, restaurant business, and cooking guide business" applied for on Oct. 30, 199, and applied for the cited service mark (registration No. 2 omitted) registered on Jan. 27, 1992, the court below did not have any objective distinction between the registered service mark and the cited service mark, and thus, it did not have any objective distinction between consumers as to the designated service mark and the entire service mark, and thus, it did not have any objective distinction between the two new service marks or service marks."

In light of the above legal principles and records, the word "MR." or "Mist" among the characters of the registered service mark or the cited service mark is merely a word used by anyone or an ordinary person, and thus, it cannot be viewed as a distinctive character. In addition, it is difficult to see that these parts are combined with "PIZA" or "Mister PZA" or "MIZA" or it is difficult to see that they form a new concept by combining them, and even if we suggest their concepts, they can not be seen as forming a new distinctive character in relation to each designated service business, it cannot be seen as forming a new distinctive character in relation to each designated service business, and therefore, it is reasonable to see that there is no distinctive character. In the same purport, the judgment of the court below is just in the misapprehension of legal principles as to the service mark and the similar part of the service mark as otherwise alleged in the grounds for appeal, and there is no such errors in the misapprehension of legal principles as to the service mark or the similar part as otherwise alleged in the grounds for appeal.

In addition, the issue is whether a registered service mark constitutes a case identical or similar to a prior registered service mark under Article 7 (1) 7 of the Trademark Act, but it is a matter of whether a registered service mark constitutes an identical or similar to a prior registered service mark under Article 8 (1) of the Trademark Act, and it is understood that registration of a registered service mark cannot be deemed null and void even under Article 8 (1) of the Trademark Act because it is not recognized as identical or similar to a prior registered service mark under Article 8 (1) of the Trademark Act, and the purport of the decision of the court below that the registered service mark falls under Article 71 (1) 7 of the Trademark Act is erroneous or that the result of the decision of the court below is not different from that of the cited service mark. The decision of the court below that the registration of the registered service mark is null and void under Article 71 (1) 1 of the Trademark Act on the ground that the registered service mark is similar to the cited service mark. Thus, the decision of the court below's dismissal of the judgment of the court of first instance as a legitimate ground for appeal is dismissed.

All arguments in the grounds of appeal are rejected.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the claimant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)