In a case where Gap filed an application for the applied service mark " "," and the Korean Intellectual Property Tribunal rendered a decision that the applied service mark cannot obtain trademark registration on the grounds that it falls under Article 7 (1) 7 of the Trademark Act in relation to the prior registered service mark " "," the case holding that the judgment below erred by misapprehending the legal principles, on the grounds that the two marks are similar, because the dominant increase in appearance is similar and used for the same or similar service business, there is a concern that ordinary consumers or traders may cause misconception and confusion about the source.

Articles 2(3) and 7(1)7 of the Trademark Act

Plaintiff (Patent Attorney in charge, Patent Attorney Yoon-ho et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2013Heo2453 decided July 11, 2013

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

The grounds of appeal are examined.

A person shall be appointed.

1. Whether a trademark is similar or not should be determined by whether there is a concern for misconception or confusion in trade by objectively observing the compared trademark in terms of appearance, name, and concept in terms of objective, overall, and separation. In particular, in cases of figure trademarks where the dominant increase in appearance is identical or similar to identical or similar goods and where the two trademarks are used as the same or similar goods, there is a concern for ordinary consumers or traders to mislead or confuse the origin of goods, the two trademarks should be deemed similar. In addition, the determination of similarity of trademarks should not be made from the perspective of whether there is a concern for misconception or confusion as to the origin of goods by the traders or ordinary consumers who stand two trademarks differently from the two trademarks themselves, but it should be made from the perspective of whether there is a concern for misconception or confusion as to the origin of goods by comprehensively taking into account the impression, memory, association, etc. brought by traders or ordinary consumers by their appearance, name, and concept (see, e.g., Supreme Court Decision 2013Do2514, May 14, 2013).

2. In light of the above legal principles and records, the “educational guidance business” is designated service business, and the pending service mark (application number omitted) and the “educational guidance business” composed of the right as above are designated service business, and the prior registered service mark consisting of the right as below is similar.

일반 수요자나 거래자의 직관적 인식을 기준으로 양 서비스표의 외관을 이격적으로 관찰하면, 두 표장은 모두 ① 6개의 도형들이 방사상(방사상)으로 배치되어 있는 점, ② 위 각 도형은 방사상의 가운데 쪽으로 비교적 좁거나 뾰족한 부분과 방사상의 가장자리 쪽으로 비교적 넓거나 완만한 곡선 부분을 가진 형상인 점, ③ 6개 도형의 위와 같은 형상 및 그 배치에 따라 전체적으로 시선을 가운데 쪽으로 집중시키거나 가장자리 쪽으로 확산시키는 것과 같은 인상을 준다는 점 등에서 공통되어 전체적인 구성과 거기에서 주는 지배적 인상이 유사하다.

However, the six diagrams of the pending service mark of this case are different in size and shape from each other, which sees that they are somewhat long, but the six diagrams of the pre-registered service mark of this case are the same size and shape which sees that all of the six shapes of the pre-registered service mark of this case, while the parts of the pre-registered service mark of this case in the pending service mark of this case are negative, the two shapes are placed in the original form in the part of the pre-registered service mark of this case, while the diagrams displayed by radiation from the pre-registered service mark of this case were composed of the pre-registered service mark of this case and the pre-registered service mark of this case were composed of the pre-registered service mark of official approval or re-fluoring without color, while the diagrams displayed by radiation from the pre-registered service mark of this case are different in color with the test color. However, this is difficult to grasp the degree of observation by this, or it seems difficult to be difficult for ordinary consumers or consumers to raise South and North Korea.

As such, if two marks are similar to the dominant increase in their appearance and are used as the same or similar service business, they may cause general consumers or traders to mislead or confuse the source. Thus, the two marks are similar.

Nevertheless, the lower court determined that it is difficult to view the pending service mark and the pre-registered service mark as similar to one another because of the difference between the above and the two. In so doing, the lower court erred by misapprehending the legal doctrine on determining the similarity of service marks, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of

3. 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 Min Il-young (Presiding Justice)