[1] The case holding that the cited service mark "SaEMY UNIVAL PAK" and the cited service mark "VIVALI" combined with DAEMY UNG letters and combined with DAEMYY UNG letters and combined with the cited service mark " non-surd" and "VIVALI" are similar to each other

[2] Criteria for determining whether designated goods are identical or similar to the designated goods

[3] The case reversing the judgment of the court below on the ground that "gol golf facility business, swimming pool business, skiing ground operation business, sports equipment leasing business (excluding transportation machinery and appliances), and amusement park operation business, which are the designated service business of the cited service mark, among the designated service businesses of the registered service mark, are similar to each other; however, the "cater operation business, DNA architecture business, art gallery operation business, and amusement park operation business, which are the remaining designated service businesses of the registered service mark, are not similar to each other, and there are no data to be deemed as similar to these service business on the records

[1] The case holding that a registered service mark in which "SaEMY UNIVD PAK" and "DAEMYI" are combined with a different group of DAEMYY UNG letters, applied before and after the application, and registered after the application, constitutes a service mark similar to each other as a whole due to the common use of the cited service mark and the cited service mark in which "VIVALI" are combined with the cited service mark in which the application was filed and registered after the application was filed, and that "VIVI" are combined with the cited service mark in this group

[2] Whether a designated service business is similar should be determined according to the general transaction norms in consideration of the nature and content of the service provided, means of provision, place of provision, scope of provider and consumer of the service business, etc.

[3] The case reversing the judgment of the court below on the grounds that the "gol business of golf facilities, swimming pool business, skiing ground operation business, sports equipment leasing business (excluding transportation machinery and appliances), and amusement park operation business, which are the designated service business of the cited service mark, belong to the sports and entertainment service business of Class 8 as shown in [Attachment 2] under Article 6 of the Enforcement Rule of the Trademark Act, and are similar to each other; however, it is difficult to view that the remaining designated service business of the registered service mark is identical or similar to the nature, contents, etc. of the service business, on the ground that the specific service business group of Class 41 of the service business is different from the category of service business, and there is no data to view that these service business is similar in the record.

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 7 of the Trademark Act / [3] Article 7 (1) 7 of the Trademark Act

[2] Supreme Court Decision 96Hu924 delivered on February 14, 1997 (Gong1997Sang, 774), Supreme Court Decision 96Hu795 delivered on March 11, 1997 (Gong1997Sang, 1108), Supreme Court Decision 96Hu1583 delivered on May 16, 1997 (Gong197Sang, 1740), Supreme Court Decision 97Hu2842 delivered on November 23, 199 (Gong200Sang, 54), Supreme Court Decision 200Hu815 delivered on October 27, 200 (Gong200Ha, 2466)

Large Leisure Industry (Attorney Lee Tae-soo, Counsel for the defendant-appellant)

Han Construction Co., Ltd. (Patent Attorney Seo-sung et al., Counsel for defendant-appellant)

Patent Court Decision 200Heo945 delivered on July 14, 2000

The part of the judgment of the court below against the plaintiff regarding theater operation, DNA, art gallery operation among the designated service business of service mark No. 5423 is reversed, and this part of the case is remanded to the Patent Court. The remaining appeal by the plaintiff is dismissed.

1. Regarding ground of appeal No. 1

The lower court determined, based on its employed evidence, that the registered service mark (registration No. 5423) of this case (registration No. 5423) in which the “SaEMY UNIV PAK” and “DDAYI” are combined with the two parts, and which combines DAEMYY UNG letters (registration No. 5423) before and after the filing of the application, the cited service mark (registration No. 52067) and the cited service mark (registration No. 52067), which combines the two parts (registration No. 52067) and the “VIVALI”, a single part of the application, constituted a similar service mark as a whole.

In light of the records, the judgment of the court below to the above purport is just, and there are no errors in the misapprehension of legal principles as to the similarity of service marks as alleged in the grounds of appeal

2. Regarding ground of appeal No. 2

The court below held that, among the designated service businesses of the registered service mark of this case, the above designated service business of this case is a service business which is highly similar in charge of the business of providing amusement park management services, skiing ground operation services, and sports equipment leasing services of this case (excluding transportation machinery and appliances) only belongs to the sports and entertainment service business of Class 8 of Article 6 [Attachment Table 2] of the Enforcement Rule of the Trademark Act, and the entertainment and sports play a mutually complementary and alternative role as leisure activities for mental and physical relaxation and shock. Since the number of facilities that can enjoy entertainment and sports together with the name of the general leisure association or set, the above designated service business of this case related to sports is more likely to overlap with the designated service mark of this case, the service business of this case, which is the designated service mark of this case related to entertainment, the service business of this case, and the service business of this case, which is similar to the registered service mark of this case, the service business of this case, which is the other registered service business of the service mark of this case, and the service business of this case, the business of citing or art gallery business of this case.

The similarity of the designated service business should be determined in accordance with the general trade norms, considering the nature and content of the service provided, the means of provision, the place of provision, the provider of the service business, the scope of the transaction, etc. (see Supreme Court Decision 97Hu2842, Nov. 23, 1999, etc.). The court below determined that the designated service mark of this case falls under the sports and entertainment service of Class 41 category 8 of the above service business, and the designated service business of the cited service mark is similar to each other, in light of the above legal principles. However, it is difficult to find that the court below's determination that the designated service mark of this case falls under the category 41 category 8 of the above service business, which is the remaining designated service business of the registered service mark of this case, such as the service business of entertainment facilities, swimming pool business, skiing business, and art gallery business of this case is similar to those of entertainment business of this case.

Nevertheless, the court below's determination that the service business was similar without any deliberation on the specific transaction situation of "the theater operation business, the DNA architecture business, the art gallery operation business, and the amusement park operation business" shall be deemed to be erroneous in the misapprehension of legal principles as to the similarity of the service business and the failure of deliberation, which affected the conclusion of the judgment. The appeal on this part is with merit.

3. Therefore, the part of the judgment of the court below against the plaintiff regarding "the theater operation business, DNA business, art gallery operation" among the designated service business of the registered service mark of this case is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)