[1] Legislative intent of Article 7 (1) 11 of the Trademark Act

[2] The meaning of "a trademark that is likely to mislead or mislead consumers as to the quality of goods" under Article 7 (1) 11 of the former Trademark Act as the grounds for refusal of an application for renewal of the duration of a trademark right and the grounds for invalidation of the renewal of duration under the same Act

[3] Requirements for the trademark under Article 7 (1) 11 of the Trademark Act

[1] The purpose of Article 7(1)11 of the Trademark Act is not to protect the existing trademark, but to prevent misconception and confusion among general consumers on the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person, thereby protecting the trust thereof.

[2] The "trademark which causes or threatens to cause a misunderstanding of the quality of goods" under Article 7 (1) 11 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997) shall be interpreted to include only the misunderstanding of the quality of goods or the misunderstanding of the quality of goods, and the latter part shall include not only the cases where the misunderstanding of the quality of goods may cause a misunderstanding of the origin of the goods without relation to the quality of the goods, but also the cases where the misunderstanding of the origin of the goods may cause a misunderstanding of the quality of the goods, and the latter part shall be interpreted to include the cases where the misunderstanding of the quality of the goods might cause a misunderstanding of the origin of the goods. Such a legal principle shall be deemed to be identical to the cases where the application for renewal

[3] Under Article 7 (1) 11 of the Trademark Act, the cited trademark or its goods are not necessarily well-known or well-known, but at least in general transactions in Korea, if the cited trademark is a trademark or goods of a specific person, it should be so known that it can be recognized as a trademark or goods of a specific person. Meanwhile, if the cited trademark acquires well-knownness by being widely known to most of the general public except in relation to the goods using it, it may be recognized as being produced or sold by a well-known trademark right holder or a person in a special relation with the trademark, depending on the use and sale situation of the goods, even though the cited trademark is not only the goods of the cited trademark but also the goods of the cited trademark, but also the goods are used on goods different from those of the goods using the cited trademark, it shall be deemed that the trademark may cause consumers to mislead or confuse the source of goods.

[1] Article 7 (1) 11 of the Trademark Act / [2] Article 7 (1) 11 of the Trademark Act, Article 42 (2) of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997), Article 45 (1) 1 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997), Article 72 (1) 1 of the Trademark Act (current deletion) / [3] Article 7 (1) 11 of the Trademark Act

[1] [2] Supreme Court Decision 86Hu156 delivered on March 10, 1987 (Gong1987,648) / [1] Supreme Court Decision 93Hu1131 delivered on May 13, 1994 (Gong1994Sang, 1702), Supreme Court Decision 95Hu47 delivered on October 12, 1995 (Gong1995Ha, 3784 delivered on April 26, 1996), Supreme Court Decision 95Hu927 delivered on April 16, 197 (Gong196Sang, 1729) / [2] Supreme Court Decision 8Hu219 delivered on June 27, 198 (Gong1989, 1165), Supreme Court Decision 97Hu9399 delivered on September 19, 197 (Gong1979, 199) / [3, 1997Hu19799.

Korean Cosmetics Co., Ltd. (Patent Attorney Kim Young- Training, Counsel for defendant-appellant)

Defendant (Attorney Na-he et al., Counsel for the defendant-appellant)

Patent Court Decision 98Heo6063 delivered on November 19, 1998

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the plaintiff was widely known from 1972 to 197. 7, 977, 977, 97, 97, 977, 99, 977, 99, 99, 97, 99, 97, 977, 99, 99, 99, 97, 99, 97, 99, 96, 97, 99, 97, 99, 96, 97, 97, 99, 97, 99, 96, 99, 96, 99, 96, 99, 96, 99, 97, 97, 99, 99, 99, 96, 99, 99, 96, 96, 96, 97, 99

2. Regarding ground of appeal No. 1

The purpose of Article 7(1)11 of the former Trademark Act is not to protect the existing trademark, but to protect the trust of ordinary consumers by preventing misconceptions or confusions about the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person (see, e.g., Supreme Court Decisions 86Hu156, Mar. 10, 1987; 86Hu156, Nov. 10, 1987); and on the other hand, "trademarks likely to misleads consumers or deceive consumers of the quality of goods" under this provision includes only misconceptions or deceptions of the quality of goods; and the latter part includes cases where there is concern that consumers might only be caused by misconceptions about the origin of goods without relation to the quality of goods (see, e.g., Supreme Court Decisions 86Hu156, Mar. 10, 1987; 89Hu353, Nov. 10, 198; 200Hu137, Nov. 19, 19891).

According to the records, the court below is just in holding that the registered trademark of this case is likely to mislead or confuse consumers as to the origin of goods in relation to the cited trademark whose essential part is jumology in accordance with its purport, and there is no error in the misapprehension of legal principles as to Article 42(2) proviso and Article 7(1)11 of the former Trademark Act, as otherwise alleged in the ground of appeal.

Where the invalidation of trademark right duration renewal registration falls under Article 7 (1) 11 of the former Trademark Act, the argument in the grounds of appeal that the trademark whose renewal registration of trademark right duration registration falls under the category of Article 7 (1) 11 of the former Trademark Act is insufficient simply to cause mistake or confusion of sources in relation to another trademark, and that the trademark should be an active false or fraudulent indication that causes mistake or fraud,

3. Regarding ground of appeal No. 2

Article 7 (1) 11 of the former Trademark Act provides that the cited trademark or its goods are not necessarily well-known or well-known, but at least a general transaction in the Republic of Korea, if the cited trademark is a trademark or goods of a specific person, it should be so known that it can be recognized as a trademark or goods of a specific person. Meanwhile, if the cited trademark acquires well-knownness by being widely known to the general public other than the parties related to the goods using it, it may be recognized as being produced or sold by a well-known trademark right holder or a person in a special relationship with the trademark in light of the purpose of use and sale transaction of the goods, even if the cited trademark is not only the goods widely known to the general public, or similar goods, but also goods of a different kind. In such a case, even if the trademark is used on goods different from the goods using the cited trademark, it shall be deemed that it might cause consumers to mislead or confuse the source of goods (see, e.g., Supreme Court Decision 96Hu412, Mar. 14, 1997).

According to the records, the court below's finding of facts and determination as seen earlier as to the similarity of the registered trademark of this case and the cited trademarks, the use status of the cited trademarks, and the similarity of the designated goods of the cited trademarks in the trade society, and the designated goods of the cited trademarks of this case, and the judgment below is just and there is no possibility of misconception and confusion as to the origin of the goods since the snowbrow, which is the registered trademark of this case or the designated goods of this case, is widely known to the extent that it can be perceived as the defendant's trademark or goods when the second term renewal of the term renewal of the registered trademark of this case is registered. The defendant's assertion that there is no concern for misconception and confusion as to the origin of the goods. The court below's determination that if the snowbrow is used in the designated goods of this case, it is possible for consumers to mistake or confuse the origin as it is manufactured or sold by the trademark right holder of the cited trademarks which are the well-known trademarks concerning cosmetics, and there is no error of law

4. All of the grounds for appeal cannot be accepted.

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 on the bench.

Justices Lee In-hee (Presiding Justice)