[1] The criteria for determining the similarity of trademarks, and whether the trademark can be deemed as a similar trademark in cases where there is a similar part between the trademarks compared thereto, but there is little possibility that the trademark may be separate and discount, or where it is clearly possible to avoid confusion of sources when the overall observation is made (negative)

[2] The case holding that even if the applied trademark " " and the pre-registered trademark " are used for the same or similar goods, they are not similar to each other on the grounds that there is no concern for ordinary consumers or traders to mislead or confuse the place of origin of goods

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

[1] Supreme Court Decision 2005Hu2908 Decided August 25, 2006 (Gong2006Ha, 1637) Supreme Court Decision 2008Hu1739 Decided September 11, 2008

Original temperature Co., Ltd. (Patent Attorney Lee Byung-soo et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2009Heo4919 Decided September 10, 2009

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

The grounds of appeal are examined.

1. Whether a trademark is similar should be determined depending on whether there is a concern for ordinary consumers or traders to mislead or confuse the origin of the designated goods in the transaction of the designated goods by objectively, comprehensively, and separately observing the external appearance, name, and concept thereof. Therefore, even if there is a similar part between the compared trademarks, such part alone may not be deemed a similar trademark if there is little possibility that separate recognition may be possible, or where it is possible to avoid confusion of the source clearly when the overall observation is made (see Supreme Court Decisions 2005Hu2908, Aug. 25, 2006; 2008Hu1739, Sept. 11, 2008, etc.).

2. In light of the above legal principles and the record, we examine whether the applied trademark of this case (application number No. 40-2007-4104) and “non-medical strawing, food cand, non-tax cand, bark, and ice cream” are designated goods and whether the registered trademark of this case (registration number No. 32355) composed of “” is similar to the registered trademark of this case (application number No. 40-2007-4104).

In that the trademark applied for trademark of this case is added to “D. yu” in the front of the English small language “proj,” the registered trademark and its appearance are different from each other. On the other hand, the trademark applied for trademark of this case is a combination of the English language “proj” and the English language “D. yu” in its front. However, considering the Korean language customs and English education level, the word “pro rata” can be recognized as a single word with the word “○○ Plan” and “○○ Project” in combination with the word or fishing gear ordinarily emitted before the ordinary consumers or traders, and as such, in relation to the designated goods, the trademark of this case does not have any special distinctiveness compared to the word “D. yu” portion, the concept “pro-registered trademark” in the latter part of the trademark applied for trademark of this case is different from the concept “pro-registered project” in terms of the concept “pro-registered project” and thus, the concept “pro-registered project” as a whole from the concept of “pro-registered project.”

Therefore, even if the applied trademark of this case and the pre-registered trademark are used for the same or similar goods, there is no possibility that ordinary consumers or traders might mislead or confuse the place of the goods. Thus, these trademarks are not similar.

The judgment below to the same purport is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on determining similarity of trademarks.

3. Therefore, the appeal is dismissed, and the 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 Kim Ji-hyung (Presiding Justice)