206Heo7276 Nullification of Registration (Trademarks)

Head of Fisheries Corporation

Seoul

Representative Director;

Patent Attorney Park Jae-hee, Counsel for the defendant-appellant-appellant

BUBE

Busan

November 1, 2006

November 15, 2006

1. The plaintiff's claim is dismissed.

2. The litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on July 18, 2006 on the case No. 2006Dang26 shall be revoked.

1. Basic facts

[Ground for Recognition: Facts without dispute]

(a) Details of the trial decision;

The Defendant filed a petition for invalidation trial on the ground that the registered trademark of this case as indicated in the Plaintiff’s Paragraph (b) falls under Article 7(1)7 of the Trademark Act because the registered trademark of this case is identical or similar to the prior registered trademark of this case as indicated in the foregoing Paragraph (c). The Intellectual Property Trial and Appeal Board rendered the instant trial decision accepting the Defendant’s claim on the ground that the name and concept of both trademarks are similar and the designated goods are similar.

B. Composition of the registered trademark (1) of this case: (2) filing date/registration date//registration number: on October 23, 2001, the designated goods of No. 543523 (3) of March 19, 2003: Electric bed, Non-Medical Electric Fences, Electric ioners, Electric ioners, Electric ioners, Electric ioners, bedles, electric ioners, shockers, electric ioners, electric ioners, electric ruptures, electric carpets, electric ruptures for non-medical purposes, electric ions for non-medical purposes (category No. 11)

(c) Composition of the Prior Registered Trademark (1): (2) Date of application / Registration No. 474896 on December 8, 1998 (only in case of goods classification No. 11) No. 11 on August 9, 2000) designated goods: Electric Non-Medical Waste Prevention, Electric Waste Prevention, Non-Medical Electric Waste Prevention, Non-Medical Electric Waste Prevention, Electric Fuses, Electric Fuses, Electric Fuses, Electric Onions, Electric Onions, Electric Onions, and Beders (only in case of goods classification) (No. 11)

2. Whether the registered trademark of this case and the prior registered trademark are similar

A. Legal doctrine

Article 7 (3) of the Trademark Act provides that "the provisions of paragraph (1) 7 and 8 shall apply to those which fall thereunder at the time of filing an application for trademark registration (it shall be deemed to fall thereunder even if the trademark of another person is invalidated under Article 71 (3)." Thus, insofar as there are another person's registered trademark by an earlier application at the time of filing an application for trademark registration, it may be compared to those of the applied trademark in determining whether the trademark falls under Article 7 (1) 7 of the Trademark Act. Although the registered trademark of another person by an earlier application is invalid after its application for trademark registration or is identical and similar to the trademark of which registration becomes null and void by a trial decision invalidating its registration, it shall not interfere with the comparison (see Supreme Court Decision 200Hu2270 delivered on October 27, 2005). On the other hand, the similarity of another person's registered trademark shall be one of the two trademarks' names, names, conceptss, etc., which are identical to those of the general consumers or members of the two or parts of the trademark.

(b) Preparation for the two trademarks;

[Ground of recognition: facts without dispute, Gap's evidence Nos. 1 and 2, rule of experience, and purport of the whole pleadings] (1) first of all, in light of the above legal principles, the pre-registered trademark that had already been filed and registered as a trademark at the time of the application of the trademark of this case can be the object of comparison in determining whether the trademark of this case falls under Article 7 (1) 7 of the Trademark Act.

(2) Next, examining whether the registered trademark of this case is similar to the prior registered trademark, the registered trademark of this case is a combination of the letters and diagrams displayed in the Korean language “the number of pages and five shapes which are much the same size as that above,” and the registered trademark of this case is a combination of the letters and diagrams displayed across three shapes. The registered trademark of this case is distinguishable from each other in terms of the letters and diagrams written “J” and “S” written at the upper end of the shape and left right and right and right and right and right and right and right and right and right and right and right and right and right and right and right and right and right and right and the shape of each letter or figure differs from each other.

However, examining whether both trademarks are similar to the name and concept, both trademarks are divided into two trademarks, and if both trademarks observe the parts of figures and characters separately, they can be divided into two parts, and they can be seen as being able to separate and observe each part, because they do not form an indivisible concept so far as they do not create a new concept. Among the registered trademarks of this case, five separate diagrams among the registered trademarks of this case are called "Osure," or "a five separate names," and the prior registered trademarks indicate the raw materials of the designated goods, and there are no specific concepts, and all the above parts are relatively weak in distinguishability. In such a case, both trademarks are identical and similar in both names and concepts, and two trademarks are identical to those of the designated goods, both of which are identical to those of the designated goods, both of which are identical to those of the designated goods.

C. Sub-decision

Therefore, although the registered trademark of this case and the pre-registered trademark of this case are different in their appearance at the time of the overall observation, because their names and concepts are similar, ordinary consumers or traders can sense their names and concepts identical or similar to each other when both trademarks are used for the designated goods identical or similar to the above designated goods, and they may cause mistake or confusion as to the source of goods due to the same or similarity of their names and concepts. Thus, the registered trademark of this case should be invalidated by Article 7 (1) 7 of the Trademark Act.

3. Conclusion

Therefore, the decision of this case is legitimate, and the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Ki-taik

Judges Dora-ok

Judges Kim Tae-tae