The case holding that the applied trademark and service mark “” is not similar to “ ,” “ ,” “ ,” and “ ,” the applied trademark and service mark “ ,” respectively.

The case holding that since the appearance, title, and concept of the trademark " "" and the trademark "" are not similar to the prior registered trademark " " "," "," "," and the trademark "" and the trademark "the earlier-registered trademark and service mark ", it is not similar because there is no concern that general consumers may mistake or confuse sources.

Articles 7(1)7 and 8(1) of the Trademark Act

Plaintiff (Patent Attorney Hanyang Patent Firm, Patent Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

March 27, 2009

1. The decision made by the Intellectual Property Tribunal on October 23, 2008 on the case No. 2008 Won1424 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. Application trademark/service mark of this case

(1) International registration date/international registration number: July 4, 2005/ 881497

(2) Composition:

(c) Designated goods/service business: as shown in the attached Form;

(b) Prior registered trademark, earlier application trademark, or earlier application service mark;

(i) the Prior Registered Trademark 1

(A) Date of application/registration date/registration number/Renewal/Renewal of registration: August 19, 1985/ September 12, 1986/ Trademark Registration No. 130512///5.13//99 of May 13, 1997

(b) Composition:

(C) Designated goods: Doring water, general cremation water, oil amount, sinkin, cremation, cremation, medicine Cratium, hedging, Hotopy, association flaco, decoration, sinium, sinium, etc., under Chapter XII of the former Product Classification (amended by the Ordinance of the Ministry of Trade, Industry and Energy No. 83, Feb. 23, 1998; hereinafter the same shall apply)

(D) Person entitled to registration: El branch chemical

(ii) the Prior Registered Trademark 2

(A) Date of application/registration date/registration number/Renewal of registration: September 14, 1995/ August 21, 1997/ Trademark Registration No. 372832/13 November 13, 2007

(b) Composition:

(c) Designated goods: institutions, public books, Switzerland north, bags, photophones, cameras, shower pents, pents, knicks, knife pots, knifs and pots of 16 categories of goods;

(D) Person entitled to registration: Samsung Ttecur Corporation

(iii) Priorly registered trademark 3

(A) Date of application/registration date/registration number: May 27, 1997/ November 30, 1998/ Trademark Registration No. 431474 of the Trademark Act

(b) Composition:

(c) Designated goods: Bags, clothes 26 of the classification of the previous goods, tape display, tape display, straw, fireworks, flowerss, photocogs, scoods, scoods, scoods, scoods, mixed scoods

(D) Person entitled to registration: Samsung Burland Corporation

(iv)an earlier application trademark 1;

(A) Date of application/registration date/registration number: November 8, 2004 / December 2, 2005 / Trademark Registration No. 641473

(b) Composition:

(c) Designated goods: Prepaid metal products of Category 14 classified into products, spoke, spoking, earbling, KONin, teblin, blin, blurgs, blurgs, tebroids, kn-type pin, knife, knifs, knifes, knifes, and predive metal

(D) Person entitled to registration: Island corporation

(v)an earlier application trademark 2;

(A) Date of application/registration date/registration number: November 8, 2004/ October 17, 2005/ Trademark Registration No. 63537 of the Trademark Act

(b) Composition:

(c) Designated goods: Fastrush, skert, tecot, Twitts, sports strush, brush, scarp, phof, pacte, pump, patrue, sata, sata, sata, sata, sata, sata, sata, leather, grheat, grheat, grheat, sat, sandbling, string, sata, pantying, pantying, etc. of category 25 of goods.

(D) Person entitled to registration: Island corporation

(vi)the earlier application service mark;

(A) Date of application/registration date/registration number: November 8, 2004 / Service mark registration No. 122390 on October 17, 2005

(b) Composition:

(c) Designated service business: Advertising planning business classified into category 35, online advertising business, business management and organizational consultation business on computer network, hotel business, export and import agent business, clothes sales agent, virtual sales agent, clothing sales agent using the Internet, household sales agent business using the Internet, marketing service business, post agency business, post agency business, post agency business, post agency business, clock sales agent, clock sales agent, and sales agent business;

(D) Person entitled to registration: Island corporation

C. Details of the instant trial decision

As to the application of the applied trademark/service mark of this case (hereinafter “instant applied trademark”), the examiner of the Korean Intellectual Property Office decided to reject the application for trademark registration on the ground that the trademark of this case is similar to the registered trademark of prior application, the trademark of prior application, the service mark of prior application (hereinafter “prior registered trademark”) and the mark, and the designated goods are identical or similar to those of the designated goods, and thus, it cannot be registered as it falls under Articles 7(1)7 and 8(1)1 of the Trademark Act.

The plaintiff filed for a trial on appeal against rejection with the Intellectual Property Tribunal, and the Korean Intellectual Property Tribunal tried it as 208 Won1424, and tried on October 23, 2008, the trademark applied for trademark of this case can be named as "flobs, flobs, flobs, and flobs," if it is separated and named as "". In such cases, the trademark applied for trademark of this case is similar or similar to the prior registered trademark, and all of the designated goods are identical or similar, and thus, the trademark of this case falls under Article 7 (1) 7 of the Trademark Act and Article 8 (1) of the Trademark Act and Article 8 (1) of the Trademark Act.

[Reasons for Recognition] Evidence Nos. 1 through 4, 6 through 8, Evidence No. 1-1, 2, the purport of the whole pleadings

2. The parties' arguments and the issues of this case

A. The plaintiff's assertion

Of the pending trademark in this case, “” is a famous designer widely known world, and is widely known to general consumers in Korea as the Plaintiff’s trademark. As such, the pending trademark in this case is referred only to as “Irema Fel” or “Ireman” by the entire trademark, and is not referred separately to as “Irebe”. Therefore, since the trademark in this case differs from the pre-registered trademark, the trademark in this case does not correspond to Article 7(1)7 of the Trademark Act and Article 8(1) of the Trademark Act, since it is not similar, it does not fall under Article 7(1)7 of the Trademark Act and Article 8(1) of the Trademark Act.

B. Defendant’s assertion

The trademark of this case is a combination of “” and “” and the two parts are not indivisible to the extent that it is deemed natural in the transaction, and thus, can be referred to as “flobs, Flobs, Flobs, and Flobs,” etc. In such a case, the trademark of this case is identical or similar to the prior registered trademark, and thus, constitutes a trademark as a whole. Accordingly, the trademark of this case constitutes Article 7(1)7 of the Trademark Act and Article 8(1) of the Trademark Act.

C. Key issue of the instant case

Any trademark (Article 7(1)7 of the Trademark Act) used on goods identical with or similar to the designated goods, which is identical with or similar to another person’s registered trademark (excluding any registered geographical collective mark) based on an earlier application, shall not be registered pursuant to Article 23(1) of the Trademark Act; where two or more applications for trademark registration are filed on different dates with respect to the same or similar trademark to be used on the same or similar goods, only the first applicant may obtain trademark registration (Article 8(1) of the Trademark Act); and where such application is in violation of Article 23(1) of the Trademark Act, the trademark registration shall not be granted

Therefore, the issues of this case are whether there are grounds for refusal of registration falling under Article 7(1)7 of the Trademark Act and Article 8(1) of the Trademark Act, because the trademark of this case is identical or similar to the registered trademark of this case and the mark and designated goods of this case.

3. Whether the trademark of this case constitutes Article 7(1)7 of the Trademark Act and Article 8(1) of the Trademark Act

A. Criteria for determination

The similarity of a trademark shall be determined based on whether there is a concern for ordinary consumers or traders to mislead or confuse the source of the designated goods in the transaction of the designated goods by observing the external appearance, name, and concept objectively, comprehensively, and systematically, and on the basis of the direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if there is little possibility of separation or recognition, or if it can avoid confusion of the source clearly when observing the whole part, it cannot be deemed a similar trademark (see Supreme Court Decision 2005Hu2908, Aug. 25, 2006, etc.).

B. Whether the mark is similar

(1) Preparation of appearance

The trademark of this case is a combination of letters and letters combined with “” and “” as “,” and the pre-registered trademark 1, 2, and 3 is “,” “,” “the pre-registered trademark 1, 2, and the pre-registered trademark 1, 2, and the pre-registered trademark is a combination of letters and letters combined with English and English persons, respectively, as “”.

Since the trademark of this case and the pre-registered trademark 1, 2, and 3 are different in the contents of English persons, the existence of Korean language, and the form of arrangement of letters, the overall appearance of the trademark of this case are different. The trademark of this case and the pre-registered trademark 1, 2, and the pre-registered trademark 1, and the pre-registered trademark 2 are different from the trademark of this case, but there are many differences between “” and “”, the overall appearance is different

(2) Preparation for a title

The trademark of this case is separated into “” and “Fribe” and, among them, the term “Fribe” is referred to as “Fribe” (the Defendant asserts that the part “” is also referred to as “Fravi, Frivi, and Frib,” etc. However, “” is perceived as French by the above mark mark of “E,” and it is deemed as “frib” in French language, and thus, it appears that the general trade division is also the same kind of mark in general trade division, as the prior registered trademark is identical or similar to the prior registered trademark, and it is likely that the overall mark is similar. Therefore, whether the trademark of this case can be separately referred to as “”.

The applied trademark of this case is marked at intervals between “” and “”. However, the applied trademark of this case is not only a domestically well-known trademark but also a well-known fashion DNA (Giorgmani). It can be recognized that the trademark “” in its sex or name is widely known to general consumers in Korea and abroad with respect to fashion goods, etc. (the ground for recognition: the purport of the entire pleadings; the defendant also does not dispute the fact that the name or trademark “” is widely known at home and abroad; it is difficult to easily understand the meaning of “the trademark” of this case only by excluding the name or trademark “,” or it is rarely possible for general consumers to memory the trademark “,” in light of the general understanding of “the possibility that it can not be easily understood as a prior trademark of this case,” and in light of the above fact, it is difficult for general consumers to easily understand the meaning of “the trademark of this case” as “the trademark of this case.”

Furthermore, compared to the similarity between the prior registered trademark and the prior registered trademark on the premise that the trademark in this case is named as "Ama Flaen" or "Imama", the prior registered trademark 1, 2, and 3 are not similar, since the title is obviously different from the trademark in this case as "Lienen", "Lienenenen" or "Imaman", which is the trademark in this case.

Next, trademark 1, 2 and 1 of the earlier application trademark 1 and the earlier application service mark are referred to in the name of “Saco Frien”, but there is a significant difference between “Fribe” and “” in the contents or audience of both trademarks, so the name of both trademarks is not similar.

The defendant argues that the trademark of this case can be separated and named only "", and that both marks are the same as the trademark of earlier application and the service mark of earlier application can be separated and named only "", but the trademark of this case is not likely to be separated and named only "frien", and in light of the above, the trademark of earlier application and the service mark of earlier application are limited to "hri Frien" and the service mark of earlier application are also marked in Korean as "hri Frien", and the part of the frien is emphasized and marked as "frien", it is deemed that there is no possibility of being separated from "hrien" ( even if "hrien" is called separately by "frien" only, since there is a difference in the name "hrien" and "frien" depending on the existence of "hrien" with central distinctive character, the above assertion by the defendant is without merit.

(3) Preparation for concept

The trademark of this case is conceptualized or named in the sex or name of a designer who was well aware of the origin of Isomer by the part “,” and the word “” is the French language having the meaning of an individual, private, and private sector, etc. as seen earlier, but it is difficult for the general consumers in Korea to easily understand its meaning, so it is difficult to prepare for the concept.

On the other hand, PRIVY of the prior registered trademark 1 is an English language with the meaning of “PRIVY” as “all individuals and reasons (reasons)” and it is difficult for ordinary consumers to easily understand the meaning in light of the English diffusion level in Korea. The meaning of “PRIVY” of the prior registered trademark 2 and 3 is the meaning of “FREE” and “BE” or “BE” among the English language, etc. The meaning of “PRIVY” of the prior registered trademark and the prior registered service mark is understood as “free” or “free alteration”, and it is difficult to prepare for concepts as it is difficult for Korean ordinary consumers to understand its meaning easily, as seen earlier.

Ultimately, the patent of this case and the pre-registered trademark of this case are difficult to prepare for the concept or different concepts, and thus are not similar to the concept.

(c) Conclusion

Therefore, the applied trademark of this case and the pre-registered trademark of this case are not similar to the appearance, name, and concept of the mark, so it is not likely for ordinary consumers to mislead or confuse the source as a whole. Thus, the applied trademark of this case does not fall under Article 7 (1) 7 of the Trademark Act and Article 8 (1) of the Trademark Act without further review as to the same or similar type of designated goods and services.

4. Conclusion

Thus, the trial decision of this case, which different conclusion, is unlawful, and thus, the plaintiff's claim for revocation is accepted as reasonable.

Judges Kim Yong-sub (Presiding Judge)