The case holding that the applied trademark “” is not similar to the applied trademark “ 1” and “PAR AVNUE” 2

Article 7 (1) 7 of the Trademark Act

Lee In-learning Co., Ltd. (Korean Patent Attorney Hanyang-soo et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2008Heo767 decided May 1, 2008

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

The similarity of a trademark shall be determined depending on whether there is a concern for ordinary consumers or traders to mislead or confuse the origin of the designated goods in the transaction of the designated goods by observing the appearance, name, and concept in an objective, overall, and separation, 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 that the trademark can be separated or recognizable, and if it can avoid confusion of the source clearly when observing the whole part, it shall not be deemed a similar trademark (see, e.g., Supreme Court Decisions 81Hu29, Jun. 8, 1982; 2005Hu2908, Aug. 25, 2006).

In light of the above legal principles and the records, the trademark of this case (application number No. 40-2006-47998), which is composed of the trademark of this case (application number No. 40-2006-4798), and the trademark of this case, “tobbags, handbags, probags, and probags,” etc. consisting of “” as the designated goods, and the registered trademark 1 (registration number No. 45084) and “tobags, handbags,” etc. consisting of “PAR AVNUE,” as the designated goods and the registered trademark 2 (registration number No. 482914) consisting of “PARAVNE,”

The term “PPS”, “Pop-up”, “AVNNE”, and “AVNUE” are continuous without distance, and considering the Korean English education level and language characteristics, the term “AVNUE” is recognized as a single word with the word “○(a)” and “○○ distance” combined with the word normally emitted in advance to ordinary consumers or traders, so it is natural to view that the trademark applied for registration of this case is recognized as a whole as “POPS”, “PSVNNUE”, and “Pop-up escape New”. Accordingly, the trademark applied for registration of this case is separated into “PPS”, “PPS” and “AVNUE”, “PS” and “AVNE”, respectively, and thus, the concept “AVNNUE” and “AVNNUE” and “AVNNNNUE” are collectively referred to as “PPS”, “PPPS”, “PPSVNNNNE”, and the term “AVNNN” and the trademark.

Furthermore, the pending trademark and the pre-registered trademark of this case are remarkably different from their appearance, and in title, the pending trademark of this case is referred to as "Poppy New," and the pre-registered trademark of this case is referred to as "Poppy New," and the pre-registered trademark of this case is different as a whole, and in terms of the concept, the trademark of this case is deemed to be similar as "distance" and "park distance," and even if these trademarks are related to any degree in the concept, they cannot be deemed to have reached the degree that they can suppress the difference of appearance and name as seen earlier.

Therefore, even if the applied trademark of this case and the pre-registered trademark of this case are the same part of the “AVNE,” in light of the portion of the “AVNE,” the degree and location of the combination of other components, and the overall composition, form, and concept, etc. of these trademarks, even if the trademark of this case is used as the designated goods identical or similar to the pre-registered trademark, it is difficult to deem that there is a concern for general consumers or traders to mislead or confuse the source of goods, and thus, these trademarks are not similar. However, the lower court determined otherwise, which erred by misapprehending the legal doctrine as to the similarity of trademarks, which affected the conclusion of the judgment, and the allegation in the grounds of appeal pointing this out is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)