The case holding that the registered service mark " and the prior-registered service mark " cannot be deemed identical or similar in any aspect of appearance, concept and name," and thus, it is not a service mark similar thereto.

[1] Article 7 (1) 7 and 11 of the Trademark Act

Seoul High Court Decision 200Na11484 decided May 2, 200

Kang Jin Law (Law Firm Barun, Attorneys Kim Jae-ho et al., Counsel for the plaintiff-appellant)

Patent Court Decision 2002Heo7490 delivered on March 13, 2003

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

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court determined that there was no ground for invalidation of the registration under Article 7(1)7(b) Item 11 of the Trademark Act on the Defendant’s registered service mark (registration number No. 69401) composed of “for the following reasons.”

(1) The Plaintiff’s registered service mark (only registration number No. 914, hereinafter referred to as “registered service mark”) composed of the instant registered service mark and white exemption is not similar in appearance and concept.

(2) The registered service mark of this case is referred to as "Sara" in the case of the name of the English language as well as the case of the name of the English language as well as the case of the registered service mark. Even if the part of the registered service mark is indicated in the Korean language as "ggem" in the part of the registered service mark, it is merely the plaintiff's subjective intention, who is the right holder of the registered service mark. Thus, it cannot be said that the house is widely used in the health care business, medical health equipment leasing business, physical therapy business, etc., which is the designated service mark's designated service mark, to the extent that ordinary consumers can recognize that the part of the registered service mark is the part of the registered service mark's part of the registered service mark's part as the part of the registered service mark's part of the registered service mark's meaning a roof used as the material of the designated service, there is no ground to conclude that it is natural that the registered service mark can not be separated from the whole registered service mark's part as a whole.

(3) Although the name of the registered service mark of this case is the same as the name of the first 2 column of the registered service mark, the registered service mark of this case is added with the sound of this case, and the prior registered service mark is about 3 minutes as a whole, and it is relatively clear that the paper is added to the last part of the added service mark, and therefore the two service marks are not identical or similar to that of the registered service mark of this case. Thus, the registered service mark of this case and the prior registered service mark of this case cannot be deemed as identical or similar in terms of their appearance, concept, and name, and as a whole, it cannot be deemed as a similar service mark when the overall observation is made.

(4) The written evidence Nos. 4, 5, and 6 alone is insufficient to recognize that the registered service mark was recognized as a specific person’s service mark at the time of the application for the instant registered service mark or at the time of June 29, 2001, which was at the time of the decision of registration.

2. Examining the relevant evidence in light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no error in the misapprehension of the legal principles as to Article 7 (1) 7 and 11 of the Trademark Act by failing to exhaust all necessary deliberations, or by misapprehending the rules of evidence, as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case as they differ in the case and purport.

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

Justices Shin Shin-chul (Presiding Justice)