A. Whether Article 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) with respect to an ex officio hearing is interpreted as granting the administrative patent judge a duty to actively detect the trial examiner and a right to determine the matters for which the party did not request a trial (negative)

B. (A) Whether the mark " " " is a trademark indicating his/her trade name under Article 26 subparagraph 1 of the former Trademark Act in a common way (negative)

C. Whether the registered trademark “” and the mark above (A) are similar (affirmative)

A. Article 119 of the former Patent Act (amended by Act No. 4210 of Jan. 13, 1990), which applies mutatis mutandis under Article 51(1) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), provides that "A trial may examine and decide on the grounds for which a party has not claimed, in a case where necessary in a public interest point, the facts that the party has not claimed, may be examined and decided ex officio, and the trial examiner does not have the duty to actively detect such facts, and no further determination shall be made on matters for which the party has not claimed in a trial.

B. (A) The mark “” is a combination of the claimant’s trade names in the letters “KVEA” with a unique figure and “KOVEA” and, among them, it is indicated that the term “large erogic acid” is a very unique letter of body that can be easily perceived to the general public. Thus, it cannot be deemed as a simple manufacturing source indicating this in a common way, and it cannot be deemed as a trademark indicating its trade name under Article 26 subparag. 1 of the former Trademark Act in a common way.

C. The marks of the registered trademark “” and the marks of the above (a) may be perceived only as a trade name part among traders or users. In that case, “water production” is a part indicating the type of business and, in that case, there is no distinctive character, and “Tiro” is deemed to be an essential part of the registered trademark, and “Tiro” is deemed to be an essential part of the trademark. Thus, two trademarks are identical in name, and “Tiro” and “Tiro” or “Tiro” can be deemed to be the same as “Wiro”, and if so recognized, two trademarks are identical in concept.

A. Article 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990); Article 51(1)B of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

Patent Attorney Kim Byung-jin et al., Counsel for the claimant-appellant

Patent Attorney Goi Electric Industry Co., Ltd., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 90Hun-Ba277 dated March 31, 1992

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

We examine the grounds of appeal.

With respect to the first and second points (1), (2), (3)

1. According to the records, since the mark (A) used by the claimant is a trademark which represents the trade name of the claimant in a common way, it falls under Article 26 subparag. 1 of the former Trademark Act (amended by Act No. 4210, Jan. 13, 1990; hereinafter the same shall apply) and the mark (A) is not similar to the registered trademark of the claimant, and it does not affect the effect of the registered trademark of this case. Thus, it is obvious that the mark (a) is sought a judgment of confirmation that it does not fall under the scope of the right of the registered trademark of this case.

2. However, since the claimant's assertion of the lawsuit that the registered trademark of this case violates Article 23 (1) of the Commercial Act or Article 9 (1) 11 of the former Trademark Act is a fact that the claimant did not assert it in the original judgment, the court below's failure to deliberate and decide on it is justified.

Article 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) which applies mutatis mutandis under Article 51 (1) of the former Trademark Act is identical to the theory that "A trial may examine the reasons for which a party did not make an application in a trial." However, this provision can be deliberated and decided ex officio on the facts that the party did not make an application in a public interest point, and if necessary, it does not purport that the trial examiner has an obligation to actively detect such facts, and it is not possible to determine the matters that the party did not make an application in a trial.

3. Therefore, in this case seeking confirmation that the mark (A) does not fall under the scope of the right of the registered trademark of this case, the court below is just in not examining and determining ex officio whether the registered trademark of this case violates Article 23(1) of the Commercial Act or Article 9(1)11 of the former Trademark Act, and there is no reason to examine whether the registered trademark of this case violates Article 9(1)11(b) of the former Trademark Act and Article 23(1) of the Commercial Act.

For the second (4)

According to the records, (a) marks are combined with the letters of "KVEA" with the letters of "GOVEA", which are unique figures and "KOVEA," and among them, since they are marked to be considerably recognizable to the general public in terms of the upper body of a unique letter of letters, it cannot be viewed as a simple manufacturing source, and it cannot be viewed as a trademark indicating its trade name in a common way under Article 26 (1) of the former Trademark Act, and therefore, the judgment below to the same effect is justified.

If a claimant intends to indicate his trade name in a common way, it would be much more larger than the combined figure or the word “KVEA” and it would not be necessary to indicate it as a letter in a unique form. There is no reason for the discussion.

On the third ground for appeal

Whether a trademark is similar or not shall be determined by the overall observation of two trademarks used for the same product in terms of their appearance, name, and concept, and in any one of them, at the same time, whether there is a possibility of misconception or confusion as to the origin of the product in the trade (see, e.g., Supreme Court Decisions 86Hu129, Feb. 24, 1987; 90Hu328, Jul. 10, 1990; 91Hu1618, Apr. 28, 1992; 92Hu292, Jul. 10, 1992; 92Hu292, etc.). The registered trademark and the mark of this case can be perceived only with their appearance, and (a) in that case, "water production" can be perceived with their trade name, and thus, "the two different e.g., the two different e., the two different e., the two different e., the two different e. "g., the two different e., the two different e.". "."., the two. "...."

Therefore, the court below's determination that the mark (A) is similar to the registered trademark of this case is acceptable, and the court below cannot be deemed to have prepared only a part of the two trademarks.

The precedent of the theory of lawsuit is not appropriate in this case, and it is not reasonable to provide guidance.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.