Plaintiff 1’s manager of Mauri Co., Ltd. and one other (Patent Attorney Kim Jung-soo, Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Patent Attorney Hwang Young-chul, Counsel for defendant-appellant)

March 11, 2005

Patent Court Decision 2001Heo5237 delivered on March 14, 2002

Supreme Court Decision 2002Hu567 Delivered on December 9, 2004

1. The decision made by the Intellectual Property Tribunal on August 31, 2001 on the case No. 2001Da395 is revoked.

2. The total costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

[Evidence: Descriptions of Evidence A1 and Evidence A12]

A. Details of the registered trademark of this case

(1) Registration number; No. 31329;

(2) The filing date/registration date; November 29, 1993/ May 12, 1995

(3) Right holder; the plaintiffs and the non-party company (name omitted)

(4) marks;

(5) The designated goods; the paper of cremation, Hankin, a printing paper, a packing paper, a marking paper, a waterproof paper, a waterproof paper, a domination paper, and suspension [attached Table 1] of the Enforcement Rule of the former Trademark Act (amended by the Ordinance of the Ministry of Trade, Industry and Energy No. 83 of February 23, 1998).

(b) Marks subject to verification;

(1) marks;

(2) Goods used; cremations;

C. Details of the instant trial decision

The defendant filed a claim against the plaintiffs and non-party companies to confirm the scope of the right of the registered trademark of this case. The Korean Intellectual Property Trial and Appeal Board deliberated the above case on August 31, 2001, which includes the trademark of this case and the mark subject to confirmation on August 31, 2001. However, although the body is accompanied by the trademark of this case on August 31, 2001, the right to exercise the right to exercise the right refers to the English "Go", which is a general personnel, and it is often used without any particular meaning, and it cannot be deemed that the consumer does not distinguish the designated goods of the registered trademark of this case or the mark subject to confirmation, and thus, it cannot be deemed that the two marks are an essential part of the two marks, even when determining whether the trademark of this case is related to the designated goods of the trademark of this case, and thus, the two marks are different in terms of appearance, name, and concept, and thus, the trademark of this case is not a similar trademark.

2. Whether the lawsuit in this case is lawful

Although the defendant asserts that the lawsuit of this case filed only by the plaintiffs is unlawful since the parties to the trial decision of this case are the plaintiffs and the non-party companies, the plaintiffs are co-owners of the registered trademark right of this case, and thus they lose in the scope of the right to confirm the scope of the registered trademark of this case, they can file a lawsuit of this case as preservation to exclude the confirmation of the above trial decision obstructing the exercise of the right to

3. Whether the trial decision of this case is legitimate

A. The plaintiffs' assertion

In addition, since the distinctiveness of the plaintiffs and the non-party company's advertisement and sales has been strengthened due to the advertisement and sales of the non-party company, "the right of rescission of contract", one of the constituent elements of the registered trademark of this case, is not a shaken mark related to the designated goods. Thus, the mark subject to confirmation and the registered trademark of this case are similar trademarks.

B. Whether the registered trademark of this case is distinguishable from the part regarding “the right to exercise”

The registered trademark of this case is a trademark consisting of the Korean language "Magman" and "Maging" as seen earlier. While the term "Maging" in the constituent parts of the registered trademark of this case is relatively easy to mean "Godming" in English, which is a general personnel. However, the term "Maging" is not a mark commonly used in the place of cremation, etc., but it is not a mark intended to be used by anyone on the designated goods such as cremation, etc., and it is not a technical mark that indicates the efficacy and use of cremation, etc., and its meaning is relatively easy to conclude that the trademark of this case does not fall under the technical mark that is directly used for the designated goods such as cremation, etc., but it is not a mark that indicates the efficacy and use of cremation, etc., and its meaning is relatively easy to conclude that it has no distinctiveness. In addition, the letter of "Maging" portion is somewhat distinctive.

C. Whether the registered trademark of this case and the mark subject to confirmation are similar

The similarity of trademarks shall be determined by whether there is a concern for mistake or confusion as to the origin of the goods by observing two trademarks used for the same kind of goods in terms of appearance, name, concept, etc. in general, objective, and separation, and on the basis of the direct perception that ordinary consumers or traders feel the trademark with respect to the trademark (see Supreme Court Decision 97Hu2842 delivered on November 23, 199). The combined trademark combining letters and letters is not always called and conceptualized by the name or shape of the entire constituent part. Thus, if each constituent part is not combined simply to the extent that it is natural if observing each constituent part separately, it can be called and conceptualized by only some parts of that constituent part, and thus, similarity shall be determined by comparing the trademark compared with the essential parts (see Supreme Court Decision 96Hu2517 delivered on September 26, 1997).

The registered trademark of this case is a combination of "the right of rescission learning" with "the mother interest holder", but it is not indivisible to observe the registered trademark of this case to the extent that these parts are natural so that it can be separated. Furthermore, considering that "the mother interest holder" is the name of the company, the registered trademark of this case can be briefly named and conceptualized only with "the right of rescission learning". The registered trademark of this case is also a combination with "Plus" and diagrams, but it is not indivisible to the extent that these parts are separated from each other, and it can not be seen that "Plus" and the figure portion are separate distinctive character. Thus, the registered trademark of this case and the mark of this case can be called simply by "the right of rescission learning", and if it is extremely identical with the concept of "the right of rescission learning", which is the essential part of the registered trademark of this case, and if it is extremely similar to the designated goods of general consumers or consumers, it can be objectively identical to the designated goods.

4. Conclusion

If so, the mark subject to confirmation falls under the scope of the right of the registered trademark of this case because it is similar to the registered trademark of this case, so the decision of this case, which different conclusions, is unlawful and revoked.

Judges Lee Jae-hwan (Presiding Judge)