The purport of Article 9 (1) 11 of the Trademark Act and the requirements for a trademark which is likely to deceive consumers under the same provision.

The purport of Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) provides that no trademark may be registered, not for the protection of the existing trademark, but for the purpose of preventing general consumers from misunderstanding or confusion with regard to the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person, and protecting the trust thereof, it should be known to the extent that it can be perceived as a specific person's goods or a trademark if it is a specific person's goods or a trademark in domestic ordinary trade.

Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

A. Supreme Court Decision 90Hu311 delivered on January 11, 1991 (Gong1991, 749) 92Hu278 delivered on July 28, 1992 (Gong1992, 2670) 92Hu674 delivered on February 9, 1993 (Gong193Sang, 978)

Sthemco-wealon Patent Attorney Na Young-hwan et al., Counsel for the defendant-appellant-appellee)

Patent Attorney Go-hoon et al., Counsel for the defendant

Korean Intellectual Property Trial Office 91/366 decided July 27, 1993

The appeal is dismissed.

The costs of appeal shall be borne by a claimant.

We examine the grounds of appeal.

1. On the first ground for appeal

The purport of Article 9 (1) 11 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) provides that no trademark may be registered, not for the protection of the existing trademark, but for the purpose of preventing general consumers from misunderstanding or confusion with regard to the quality, origin, etc. of goods using a trademark already recognized as a trademark of a specific person, and protecting the trust thereof, it is not for the protection of the existing trademark. Thus, in order to determine that there is a concern for deceiving consumers, the quoted goods or quoted trademarks are not necessarily known and recognizable, but for at least in domestic ordinary transactions, it should be known to the extent that it can be perceived as goods or trademarks of a specific person if they are goods or trademarks (see, e.g., Supreme Court Decisions 90Hu311, Jan. 11, 1991; 92Hu278, Jul. 28, 1992; 9Hu2674, Feb. 9, 1993).

The appeal is dismissed by the court below because it states that the above provision can be applied only when the cited trademark is well-known. However, according to the reasoning of the court below's decision, it is clear that the cited trademark is not so known in the Republic of Korea. Therefore, the court below's decision of the court below is without merit.

2. On the second ground for appeal

With respect to the evidence such as a private document prepared by the claimant, the court below may determine the admissibility of evidence by free evaluation of evidence, and it is not necessary to explain daily reasons for rejection of evidence that lack the admissibility of evidence.

In addition, even if all of the evidence presented by the claimant were combined, the cited trademark is registered in 13 countries including the United States, but the various main goods which are the designated goods of the quoted trademark have been imported from May 1986, since then in this year and on May 1987, about US$ 40,000, about US$ 166,000, US$ 309,000 in 1989, US$ 225,000 in 190, and the goods were brought into the Republic of Korea. The above imported goods cannot be deemed as small-sum products in light of the total market size of domestic main goods for the period, and there is no evidence that all the imported goods were sold or brought into Korea, and it cannot be readily concluded that the above cited trademark or its designated goods were widely known to consumers or consumers through mass advertising, such as newspapers or magazines, or that the above imported goods were not widely known to consumers or consumers.

Therefore, the court below is just in holding that the registered trademark of this case is not likely to deceive consumers in relation to the cited trademark, and there is no violation of the rules of evidence, omission of judgment, or incomplete hearing as pointed out in the arguments.

However, the decision of the court below is not appropriate in light of the fact that the time of determining whether the above part of the court below stated "No ground was introduced or distributed to the Republic of Korea before the application for the registered trademark of this case" is widely known in the Republic of Korea, but it does not affect the result of the decision.

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

Justices Kim Sang-won (Presiding Justice)