[1] The subject of " another person's registered trademark by prior application" under Article 7 (1) 7 of the Trademark Act

[2] The case affirming the judgment of the court below which held that the designated goods are similar to the cited trademark 2, which is composed of "the cited trademark 1, the designated goods of which are "the cited trademark 1, the goods of which are "the goods of which are "the goods" and "the goods of which are "the goods" and "the goods of which are "the goods of which are "the goods of the cited trademark 1, the goods of which are "the goods

[1] Article 7 (3) of the Trademark Act provides that the provision of Article 7 (1) 7 of the Trademark Act shall apply to the trademark which falls thereunder at the time of application for trademark registration (the case where another person's registered trademark is invalidated by the provisions of Article 71 (3) of the Trademark Act shall be deemed to fall thereunder. Thus, if a person's registered trademark prior to the time of application for trademark registration exists at the time of application for trademark registration, it may be compared in determining whether a person's registered trademark falls under Article 7 (1) 7 of the Trademark Act, and even if "the other person's registered trademark prior to the time of application for trademark registration becomes null and void after the application for trademark registration or is identical or similar to the trademark for which the registration becomes final and conclusive by the decision to invalidate the registration by the decision to invalidate its registration, there

[2] The case affirming the judgment of the court below which held that the designated goods are similar to the cited trademark 2, which is composed of "the cited trademark 1, the designated goods of which are "the cited trademark 1, the goods of which are "the goods of which are "the goods" and "the goods of which are "the goods" and "the goods of which are "the goods of which are "the goods of the cited trademark 1, the goods of which are the goods of which

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act

[2] Supreme Court Decision 97Hu3623 delivered on December 24, 1999 (Gong2000Sang, 309) Supreme Court Decision 97Hu860, 877, 884 delivered on April 21, 200 (Gong200Sang, 1293)

Bosch Rexrothton Co., Ltd. (Attorney Cho Young-young, Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Furthermore, Poolcom, L.P. (Attorneys Yellow Young-ju et al., Counsel for the plaintiff-appellant)

Patent Court Decision 2003Heo2713 delivered on September 4, 2003

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

1. As to the ground of appeal on the "other person's registered trademark by prior application" under Article 7 (1) 7 of the Trademark Act

A. Article 7(3) of the Trademark Act provides that the provision of Article 7(1)7 of the Trademark Act shall apply to the trademark which falls thereunder at the time of application for trademark registration (if another person's registered trademark is invalidated by Article 71(3) of the Trademark Act, it shall be deemed to fall thereunder.) In addition, if there is "the other person's registered trademark by prior application" at the time of application for trademark registration, it may be compared in determining whether the trademark falls under Article 7(1)7 of the Trademark Act, and even if the "the other person's registered trademark by prior application has become invalid after the application for trademark registration or is identical or similar to the trademark for which the registration becomes final and conclusive by the decision to invalidate its registration by final and conclusive by the decision to invalidate its registration, there is no difficulty in preparing for it.

B. In light of the above legal principles and records, the designated goods are classified into "new and double pages" and "new and half pages", and "new and double pages" are classified into "one trademark (registration number 1 omitted) and the designated goods" and "the cited trademark 2 (registration number 2 omitted) composed of them have already been applied for and registered as a trademark," and "the cited trademark 1 and 2 (registration number 2 omitted) may be compared to the cited trademark in determining whether the trademark of this case falls under Article 7 (1) 7 of the Trademark Act, and the designated goods shall be classified into "the new and double paper" and "the trademark (registration number 3 omitted) composed of them" shall be registered as "the new and double paper" and "the trademark (registration number 4 omitted) composed of others" shall not be cited as "the trademark "the trademark (registration number 1 omitted) composed of two trademarks" and "the trademark shall not be cited or invalidated" as "the trademark of this case," and the trademark shall not be cited or invalidated as "the trademark of this case," and its registration 1.

C. Therefore, we affirm the judgment of the court below that the cited trademark 1 and 2 constitute "other person's registered trademark by an earlier application" under Article 7 (1) 7 of the Trademark Act, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. As to the ground of appeal on the similarity between the applied trademark of this case and the cited trademark 1 and 2

A. In comparison with the trademark 1 and 2 applied in this case, the court below held that since the trademark of this case and the trademark 1 and 2 applied in this case are similar to each part of the trademark of this case and it cannot be seen that it is indivisible to the extent that it is natural to conduct a transaction, it can not be seen that the trademark of this case is separated from each part of the parts and thus can not be seen as being separated and observed, and that the part of the applied trademark of this case can not be seen as identical or similar to the cited trademark 1, 2 and its title and concept where the trademark of this case is named and conceptualized only with the part of the "POLO", the trademark of this case and the cited trademark 1, 2 are identical to the trademark of this case and the cited trademark of this case, and even if the trademark of this case and the cited trademark 1, 2 are jointly composed of the trademark of this case and the cited trademark of this case and the trademark of this case and the designated goods of this case cannot be determined as identical or similar to the designated goods of this case, the designated goods of this case.

B. In light of the records, 'PLO' or 'PLO' shall not be deemed to fall under the ordinary name or technical mark of the designated goods of the applied trademark of this case or the cited trademark 1 and 2, and the applied trademark of this case can be separated from 'POLO' only and 'POLO', so the above judgment of the court below that the applied trademark of this case is similar to the cited trademark 1 and 2 is just, and there is no error in the misapprehension of legal principles as to the distinctiveness and similarity of the trademark as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)