[1] Whether trademark infringement can be deemed where a mark similar to another person's registered trademark is used only as a design (negative)

[2] The case holding that the manufacturing and selling of the spawn spawn which made the head of an animal head does not infringe on the trademark right of the registered trademark

[1] If a mark similar to the registered trademark of another person is used for goods identical with or similar to the designated goods, it constitutes an act of infringing another person's trademark right. However, even if it is used for a mark similar to the registered trademark of another person, if it is not for indicating the source that it is an essential function of the trademark, but for the purpose of its use only as a design, it cannot be seen as an act of infringing another person'

[2] The case holding that the production and sale of the salary spawn which made the head of an animal head does not infringe the trademark right of the registered trademark

[1] Articles 66 subparag. 1 and 93 of the Trademark Act / [2] Articles 66 subparag. 1 and 93 of the Trademark Act

[1] Supreme Court Decision 96Do139 delivered on September 6, 1996 (Gong1996Ha, 3077)

Defendant

Prosecutor

Daejeon District Court Decision 95No1420 delivered on May 10, 1996

The appeal is dismissed.

1. We examine the Prosecutor’s grounds of appeal.

If a mark similar to another person’s registered trademark is used for goods identical with or similar to the designated goods, it constitutes an act of infringing another person’s trademark right (Article 66 subparag. 1 of the Trademark Act). However, even if it is used for a mark similar to another person’s registered trademark, if it is not for indicating the source that it is an essential function of the trademark, but for the purpose of design only, it cannot be seen as an act of infringing another person’s trademark right.

According to the records, it is difficult to conclude that the trademark of this case was used by the defendant as a mark similar to the registered trademark of this case (No. 136547, No. 17831, No. 17832, No. 17833, No. 17833) is used for the purpose of indicating the source since it can be known that the trademark of this case is widely known to ordinary consumers to the extent that it can be recognized as the name of "dyp", and it is difficult to conclude that it is for the purpose of indicating the source of this case, and even if the whole shape of this case and the part of the registered trademark of this case have the function of indicating the source of origin, it is different from the overall appearance or concept of the two, and in comparison with the trademark of this case, it is difficult to find that the trademark of this case and this case cannot be seen as similar to the trademark of this case because there is no lack of evidence to acknowledge that the trademark of this case were widely known to ordinary consumers as the name "dyp".

In this regard, the judgment of the court below which acquitted the defendant is just, and the judgment below does not contain any error of law such as the theory of lawsuit. There is no reason to discuss.

2. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)