[1] Criteria for determining similarity of trademarks

[2] In a case where a combination trademark of letters and diagrams has a unique feature of the figure and can derive a specific name or concept in itself, whether the word alone refers to the word or concept (affirmative)

[3] The case holding that the combined trademark of diagrams and diagrams and letters is different from each other

[1] Whether a trademark is similar or not shall be determined by whether there is a concern for misconception or confusion as to the quality or origin of the goods in trade, by observing two trademarks used for the same kind of goods objectively, comprehensively, and differently from the appearance, name, and concept in terms of three aspects of the appearance, name, and concept. Thus, even if one of the external appearance, name, and concept is similar, if it is possible for consumers to clearly mistake or confuse the quality or origin, it shall not be similar if the whole consumers to avoid confusion or confusion. However, even if there are different parts, if the appearance, name, or concept is similar, it shall be similar if it is easy for ordinary consumers to mislead or confuse as a whole.

[2] A trademark consisting of letters and diagrams is generally referred to as a word portion, unless the figure portion is unique and can derive any name or concept by itself.

[3] The cited trademark is a combination of the figure and the letter part, which is not derived from which name or concept is not derived. Thus, it is distinguishable from the original trademark consisting solely of the figure in appearance from the original trademark. While the cited trademark refers to a "gym," the cited trademark is called a "gym," it is not different from the original trademark because there is no particular name, but it is not compared with each other in terms of the concept. Thus, regardless of the similarity between the cited trademark and the original trademark, the name and concept are clearly different from each other in terms of the cited trademark, and it is not similar to each other in terms of the overall, objective, and external observation.

[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

[1] Supreme Court Decision 94Hu1077 delivered on September 9, 1994 (Gong1994Ha, 2648), Supreme Court Decision 95Hu64 delivered on May 26, 1995 (Gong1995Ha, 2272), Supreme Court Decision 95Hu1692 delivered on April 9, 1996 (Gong196Sang, 1406)

Liveter Satur (Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 94Na1231 dated August 30, 1995

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are also examined.

The similarity of a trademark shall be determined by whether or not there is a concern for misconception or confusion as to the quality or origin of goods in trade, even in any one of the two trademarks used for the same kind of goods by objectively, comprehensively, and separately observing in terms of their external appearance, name, and concept, and at any time, depending on the possibility of misconception or confusion as to the quality or origin of goods in trade. Thus, even if any of the external appearance, name, and concept is similar, it shall not be deemed similar if it is possible for consumers to clearly mistake or confuse the quality or origin. However, even if there are different parts, if the overall appearance, name, or concept is similar, it shall be deemed similar if it is difficult for ordinary consumers to mislead or confuse as a whole due to similar external appearance, name, or concept (see Supreme Court Decision 95Hu1692 delivered on April 9, 196).

According to the reasoning of the decision of the court below, the court below held that the cited trademark (registration No. 1 omitted) which was registered earlier than the applied trademark of this case (hereinafter referred to as the "original trademark") is a combination trademark of figures and letters, not a new concept due to the combination thereof, but a combination of figures and two lines is not formed, and it is not indivisible enough to separate and observe the above letters and diagrams. Among them, if it is observed only with the figures, it is not possible to derive a specific name and concept in both the original trademark and the figure parts. However, in the appearance, both trademarks are compared with each other, since both sides are cut down from the left floor to the right side, and they are expressed to combine with one another, and the trademark is composed of one or two lines with the right side above, and it is reasonable to see that there is a difference between the original trademark and the two ordinary consumers in terms of the same situation as the trademark's origin, but it is reasonable to see that there is a difference between the two trademarks in terms of the general consumers and consumers' origin.

A trademark consisting of a pattern, letter, and figure is generally called and conceptualized as a part of text, unless it is the case where the figure part is unique and it is possible to derive any name or concept by itself. According to the records, the cited trademark is a combination of the figure part and the letter part, and no name or concept is derived from which the figure part is derived. Thus, the cited trademark is called and conceptualized only for the part of the original part. On the other hand, it is distinguishable from the original trademark consisting solely of the figure, while the cited trademark is called a "arche" (it is apparent that the cited trademark does not seem to be called a "arche") and it is not against the concept. Thus, regardless of the similarity between the cited trademark and the original trademark, the title and concept are clearly different, in whole, objective, objective, and observation, regardless of the similarity between the cited trademark and the original trademark, and even if it is not similar to the designated goods, it is not likely that the trademark is identical to the designated goods or its quality is not identical to the general consumers.

Nevertheless, the court below determined that the trademark of the original source and the cited trademark are similar to each other, which is ultimately likely to mislead or confuse the source of goods to ordinary consumers. Accordingly, the court below erred by misapprehending the legal principles on determining the similarity of trademarks, thereby affecting the conclusion of the decision. The ground of appeal assigning this error is with merit.

Therefore, the decision of the court below is reversed and the case is remanded to the Korean Intellectual Property Tribunal for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-hun (Presiding Justice)