Whether the trademark "DUCIAVITL" and "VITALIS" are similar.

The similarity of a trademark shall be determined depending on whether there is a possibility of mistake or confusion as to the source of goods based on the direct perception that ordinary consumers or traders feel about the trademark in the transaction of the designated goods. Even if there are similar parts between the two trademarks, if the part constituting the essential part is different and it is possible to avoid confusion as to the source clearly when the overall observation is made, it cannot be deemed a similar trademark. Even if the "VITAL" part of the "DUCIVV" is somewhat similar to the "VITALS" and the name of the cited trademark, the part is somewhat similar to the "VITALS", which is necessary for the maintenance of life, its face, head cosmetics, etc., which are the designated goods of the applied trademark, the face, head cosmetics, etc. of the designated goods of the applied trademark, and thus, it cannot be seen as a similar trademark as indicating the quality or efficacy of the designated goods, and thus the overall trademark cannot be cited as a trademark in comparison with the concept of "DI" of the trademark as a whole and thus, it cannot be seen as a similar trademark in comparison with the two parts.

Article 7 (1) 7 of the Trademark Act

Supreme Court Decision 89Hu513 decided Aug. 8, 1989 (Gong1989,1366) 88Hu1328 decided Jan. 25, 1990 (Gong1990,535) 90Hu717 decided Dec. 11, 1990 (Gong1991,484)

Rohalal (Es and A) Patent Attorney Park Jong-soo et al., Counsel for the defendant-appellant-appellee)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 92Na1528 dated October 23, 1993

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal by the applicant's attorney are examined.

According to the reasoning of the original decision, the court below affirmed the decision of the court below that the trademark "DUCA VITAL" consists of two parts, "DUCIA" and "VITALL", since two parts are different from those of the cited trademark "VITALS" and its appearance and concept, and thus, if the trademark is composed of two parts, it can be called "DUCIA" and "VITALL", in light of the situation of today's trading society requiring simple and swiftness in the product transaction, and thus, if the trademark is called "VITALL" in its composition, it can be called only one part of them. Thus, if the trademark is called "VITAL" in its composition, it is similar to the name "bag, bag, bag," which is the title of the cited trademark, and if both trademarks are used for the designated goods of the same kind, it is possible to mislead or confuse the general consumers or the consumers with the goods of the same kind, and thus, it is justified in applying the trademark law.

However, the similarity of two trademarks shall be determined depending on whether there is a possibility of mistake or confusion as to the origin of goods based on the direct perception that ordinary consumers or traders feel about the trademark in the transaction of the designated goods. Even if there is a similar part between two trademarks, if the parts constituting the essential part are different and it can avoid confusion as to the source clearly when the overall observation is conducted, it shall not be deemed a similar trademark.

According to the records, even if the part of the trademark "VITAL" in this part is somewhat similar to the cited trademark in terms of the cited trademark, it is meaningful to use new meaning, such as face, face, hair, etc. as designated goods of the original trademark, face, hair, etc. in relation to the head cosmetics, face, hair, etc., in relation to the designated goods of the original trademark, and in relation to the head cosmetics, it cannot be added to the designated goods as a mark indicating the quality or efficacy of the designated goods because there is no special distinction between the cited trademark and the cited trademark. Therefore, it is not appropriate to compare only this part with the cited trademark, and since it is obvious difference between the cited trademark and its appearance, concept, and name, the two trademarks cannot be seen as similar.

Nevertheless, there is an error of law by misunderstanding the legal principles under Article 7 (1) 7 of the Trademark Act, which affected the conclusion of the judgment, in the original decision that the two trademarks are similar. Therefore, the ground for appeal assigning this error

Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)