Licecom Co., Ltd. (Law Firm Hanyang Patent Attorney Lee Han-hee et al., Counsel for the defendant-appellant)

Defendant (Attorney Lee Jae-dong, Counsel for defendant-appellant)

July 2, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on January 13, 2009 on the case No. 2008Da1799 shall be revoked.

1. Basic facts

(a) Details of the trial decision;

On June 19, 2008, the Plaintiff filed a petition against the Defendant for a registration invalidation trial on the instant registered trademark on the ground that the instant registered trademark, as described below, was registered in violation of Article 7(1)4, 10, 11, and 12 of the Trademark Act.

After the Korean Intellectual Property Trial and Appeal Board reviewed the above case on January 13, 2009, it dismissed the above case on the ground that at the time of application and decision of registration of the trademark of this case on January 13, 2009, the plaintiff's patent of this case was not registered in violation of Article 7 (1) 4, 10, 11, and 12 of the Trademark Act on the ground that the trademark of this case cannot be deemed to have been registered in violation of Article 7 (1) 4, 10, 11, and 12 of the Trademark Act on the ground that the comparable trademark or service mark of this case as specified below was widely known and distinguished in Korea or not recognized as a specific person's trademark or

B. The registered trademark of this case

(1) Date of application/registration date/registration number/holder: June 3, 2004/ April 11, 2005/ Defendant No. 614152/Defendant

(2) Marks:

(3) Designated goods: “The product category No. 9 of the category of goods “the anti-proof security, the security diameter, the general security diameter, the knife, the hand knife, the underwater knife, the anti-sports knife, the anti-sports knife, the anti-sports knife, the inner knife, the inner knife, the knife, the knife, the knife, the knife,

(c) A comparable trademark or service mark;

(1) A comparable trademark 1 (trademark registration No. 561182)

(A) Marks:

(b) Designated goods: Plastic, mascar, nitroc, Skinc, Skincker, skin presses, frhumcs, Aud voting, cream, clishing, fashion cream, painters; and

(2) The comparable trademark 2 (Trademark Registration No. 575323)

(A) Marks:

(B) Designated goods: as shown in the comparative trademark 1.

(3) Compared trademark 3 (Trademark Registration No. 63298)

(A) Marks:

(B) Designated goods: as shown in the comparative trademark 1.

(4) Compared trademark 4 (Trademark Registration No. 556068)

(A) Marks:

(b) Designated goods: air bags, light bags, non-metallic metal bags, non-metallic metal bags, keeping bags, document bags, travel bags, packing bags, slock bags, student bags, handbags and handbags;

(5) Compared trademark 5 (Trademark Registration No. 564580)

(A) Marks:

(B) Designated goods: as shown in the comparable trademark 4.

(6) Compared trademark 6 (Trademark Registration No. 635185)

(A) Marks:

(B) Designated goods: as shown in the comparable trademark 4.

(7) The comparable trademark 7 (Trademark Registration No. 56183)

(A) Marks:

(b) Designated goods: deaf-gu, pulcot, scrut, scrut, scrush, scrushs, children's clothes, knibs, shackers, shackers, prushs, brushs, brush, brush, brush, brush, crush, crush, swimming-outs, crush, crush, crush, brush, scrush, scrush, prush, brush, brush, brush, bru, brue, bat, bru, and leathers;

(8) Compared trademark 8 (Trademark Registration No. 573139)

(A) Marks:

(B) Designated goods: as shown in the comparable trademark 7.

(9) Compared trademark 9 (Trademark Registration No. 632157)

(A) Marks:

(B) Designated goods: as shown in the comparable trademark 7.

(10) 10 comparable service mark 10 ( service mark registration No. 100705)

(A) Marks:

(b) Designated service business: both clothes sales agent business, new category sales agent business, mother and child sales agent business, leather category sales agent business, leather category sales agent business, other clothes sales agent business, sweging sales agent business, sweging sales agent business, Gaz sales agent business, Gaz sales agent business, product display business,

(11) 11 (registration of service mark No. 97598) of comparable service mark 11

(A) Marks:

(B) Designated service: The same shall apply to 10 comparable service marks.

(12) Compared service mark 12 (service mark registration No. 124597)

(A) Marks:

(B) Designated service: The same shall apply to 10 comparable service marks.

[Ground of recognition] Nos. 1, 2, 3

2. Issues;

The key issue of the instant case is whether the instant registered trademark was registered in violation of Article 7(1)10, 11, or 12 of the Trademark Act (amended by Act No. 8190, Jan. 3, 2007; hereinafter the same).

3. Judgment on the issue

A. Whether it falls under Article 7(1)10 and 12 of the Trademark Act

According to Article 7 (1) of the Trademark Act, "a trademark which is likely to cause confusion with any other person's goods or business recognized remarkably among consumers" (Article 10) and "a trademark which is identical or similar to a trademark which is recognized as indicating the goods of a specific person by domestic or foreign consumers, and which is used for unjust purposes, such as obtaining unjust profits or inflicting harms on the particular person" (Article 12) may not be registered.

Therefore, in order to fall under Article 7 (1) 10 of the Trademark Act, a trademark subject to comparison should be recognized as a well-known trademark, i.e., a trademark on the goods or business of another person recognized remarkably among consumers at the time of the application for trademark registration, and in order to fall under Article 7 (1) 12 of the Trademark Act, a trademark subject to comparison should have been recognized as indicating the goods of a particular person between domestic or foreign consumers at the time of application for trademark registration (i.e.,, the trademark subject

Therefore, this study examined whether the comparable trademark or service mark is a well-known or well-known trademark or service mark among domestic consumers at the time of applying for the trademark of this case. The Plaintiff submitted Gap evidence Nos. 4 through 8 (including relevant numbers; hereinafter the same shall apply) as evidence of well-known or well-known or well-known trademark or service mark used by it. However, Gap evidence No. 4 (income statements) is materials after October 1, 2004, which is the date of application of the trademark of this case, since it was after June 3, 2004, which is the date of application of the trademark of this case, the part related to the comparable trademark or service mark cannot be calculated, and Gap evidence No. 5 (store list, agency contract, and business registration certificate) was most of the materials related to the burial opened after the date of application of the trademark of this case, and it cannot be recognized that the pertinent comparative trademark of this case was produced after the date of application of the trademark of this case or most of the trademarks of this case.

Therefore, the registered trademark of this case cannot be deemed to fall under Article 7 (1) 10 of the Trademark Act, and it cannot be deemed to fall under Article 7 (1) 12 of the Trademark Act unless there is any evidence that the comparable trademark or service mark was known in a foreign country at the time of application for the registered trademark of this case.

B. Whether Article 7 (1) 11 of the Trademark Act is applicable

According to Article 7 (1) 11 of the Trademark Act, “a trademark likely to mislead or deceive consumers as to the quality of goods” shall not be registered. In order to find that there is a “w to mislead consumers” as referred to in this provision, a trademark used or used goods, which is the subject of comparison, at the time of the decision to register the trademark, should be known to the extent that it can be perceived as a trademark or goods of a specific person if it is a trademark or goods in general transactions in Korea at least in general. In addition, as a matter of principle, there should be the same or similarity between the designated goods of the comparative trademark or goods used in the comparative trademark and the designated goods of the applied trademark. However, even if it is not so, in light of the actual use condition of the comparative trademark, economic relation between the goods, and other transaction circumstances, there should be concerns of misconception or confusion about the source to the extent that the trademark applied for registration is not used on the designated goods identical or similar to those of the goods used in the comparative trademark.

However, the above evidence submitted by the Plaintiff alone is insufficient to recognize that the comparable trademark or service mark was known to the extent that consumers could have been perceived as a specific person’s trademark or service mark at the time of the decision to register the trademark of this case. Moreover, it is insufficient to recognize that the designated goods of the trademark of this case are identical or similar to cosmetics, bank supplies, shoes, clothes, caps, leathers, and their sales business, which are the designated goods or service marks of the comparable trademark or service marks, or that there is a concern for misconception or confusion of sources to the extent that they are not likely to be inconsistent.

Therefore, the registered trademark of this case does not fall under Article 7 (1) 11 of the Trademark Act.

4. Conclusion

Thus, the registered trademark of this case cannot be deemed null and void of registration. The decision of this case is legitimate based on its conclusion. Thus, the plaintiff's claim seeking revocation is dismissed as it is without merit.

Judge crude oil (Presiding Judge)