2019Hu1121. Nullification of registration (Trademark)

Except as otherwise expressly provided for in the Majority Opinion

Law Firm Sung (Law Firm Sung, Counsel for defendant-appellant)

Attorney Kim In-soo

Defendant:

Patent Court Decision 2018Heo247 Decided May 31, 2019

April 29, 2020

The appeal shall be dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds for appeal are determined.

1. Judgment on the ground of appeal No. 1

The similarity of a trademark shall be determined by whether the external appearance, name, and concept of a trademark is likely to cause mistake or confusion as to the origin of goods by observing the concept in a general consumer or trader’s perspective. Even in cases where there are different parts in the external appearance, name, and concept, if it is easy for ordinary consumers or traders to mislead or confuse as to the origin of goods, one similar trademark should be deemed as a similar trademark. However, even if one is similar, if a trademark as a whole can avoid mistake or confusion as to the source clearly based on the direct perception that ordinary consumers or traders feel with respect to the trademark, it shall not be deemed as a similar trademark (see, e.g., Supreme Court Decision 2001Hu3415, Nov. 26, 2002).

Upon examining the record of the above legal principles, the concept is identical or similar since the prior-registered service mark (registration No. 1 omitted, designated goods cosmetics, etc.) composed of the instant registered trademark (designated goods No. 2 omitted, designated goods cosmetics, etc.) can be recognized as both "natural friendship". However, the instant registered service mark is referred to as "Nur Furd," and the prior-registered service mark is referred to as "natural goes off," and there is a difference between the name and the existence of the figure portion and the Korean language. Considering the importance of the registered trademark in the transaction of designated goods, even if the concept is similar, the two marks are clearly distinguishable from the appearance and name as a whole, so even if they are used together with similar goods and services, it is difficult to see that the general consumers or traders are confused with the origin of the instant registered service mark as well as those of this case.

In the same purport, the lower judgment did not err by misapprehending the legal doctrine regarding the determination of similarity of trademarks, as otherwise stated in the grounds of appeal.

2. Judgment on the ground of appeal No. 2

In determining the similarity of trademarks, whether there is a concern to cause mistake or confusion as to the source of goods should be determined on the basis of ordinary consumers or traders in Korea with common attention (see Supreme Court Decisions 2006Hu954, Sept. 8, 2006; 98Hu2627, Apr. 11, 2000, etc.).

Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the subject of mistake and confusion as to the source of goods.

3. Conclusion

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.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Ansan-chul

Justices Kim Jong-hwan