[1] Criteria for determining similarity of service marks

[2] Whether a service mark consisting of a part or whole of a trade name or a service mark consisting of letters and diagrams is named and conceptualally conceptualized or conceptualized only with a common name of a trade name or the part of a official mark (negative)

[3] Criteria for determining concerns over mistake and confusion of service marks

[4] Whether the service mark “blance + Flance £«” and “KOREATRS & TRVECO.” LTD £« Flock + Korea Tourist Co., Ltd.”, “Korea Tourist Co., Ltd.” and “Korea Tourist Co., Ltd.” are similar (affirmative)

[1] Whether it is similar to a service mark should be determined by whether there is a concern of misconception or confusion as to the origin of the service mark by observing two or more service marks used for the same kind of service business in terms of appearance, name, concept, etc., and on the basis of a direct perception that ordinary consumers or traders feel with respect to the service mark. A service mark combining letters, letters, or figures must be determined by the whole composition, not necessarily by the name, concept, but by an integral combination to the degree that it is deemed natural in the transaction, if each component is separately observed, it can be simply called, and conceptualized by only a part of the composition. In addition, if it is possible to think that two or more service marks or concepts are identical or similar to another person's service mark, if it is deemed that the name, concept is identical or similar to the other person's service mark, the trademark as a whole should be determined as similar if it is not easy to mislead or confuse consumers as to the origin of the trademark or consumers as a whole.

[2] Even though a service mark consists of a part or a whole of a trade name, or a service mark combining letters and diagrams is the combined service mark of the basic service mark based on its figure only, barring special circumstances such as where the trade name or figure part is remarkably recognizable to traders or consumers, it cannot be viewed that the service mark is called and conceptualized only including an ordinary name, such as an occupational indication, or an official mark, or that part alone is called and conceptualized.

[3] The likelihood of mistake or confusion of a service mark should be determined by whether there is a possibility of general and abstract mistake or confusion of the quality or source of the service in relation to the designated service business, and the existence of a dispute between the users of each mark, which is compared with the specific mistake or confusion, shall not be considered.

[4] In comparison with the cited service mark "KREATRS & TRVECO", "Korea Tourist Co., Ltd.", "Korea Tourist Co., Ltd.", "Korea Tourist Co., Ltd.", "Korea Tourist Co., Ltd." and "Korea Tourist Co., Ltd." and "Korea Tourist Co., Ltd.", the cited service mark's text of the applied service mark indicate the nature of each designated service, so the applied service mark and cited service mark can be called and conceptualized solely by the "highness", and each designated service mark and cited service mark's respective designated service business are similar to the service business's classification of Chapter 108 of the former Trademark Act, and are likely to cause mistake or confusion between consumers as to their respective designated service marks or service marks.

[1] Article 7 (1) 7 of the Trademark Act / [2] Article 7 (1) 1 of the Trademark Act / [3] Article 7 (1) 7 of the Trademark Act / [4] Article 7 (1) 7 of the Trademark Act

[1] [4] Supreme Court Decision 95Hu2008 and 2015 decided Dec. 10, 1996 (Gong1997Sang, 380), Supreme Court Decision 97Hu2019 decided Oct. 23, 1998 (Gong1998Ha, 2780), Supreme Court Decision 98Hu2412 decided Mar. 12, 1999 (Gong199Sang, 672), Supreme Court Decision 98Hu1846 decided Jul. 9, 199 (Gong199Ha, 1627), Supreme Court Decision 98Hu2382 decided Jul. 23, 199 (Gong199Ha, 1787) / [199Ha, 1784] Supreme Court Decision 98Hu3979 decided Apr. 196, 198 (Gong199Ha, 197)]

Yoon-won (Patent Attorney Lee Tae-hee et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 96 No. 881 dated August 29, 1997

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

The grounds of appeal are examined.

Whether a service mark is similar or not shall be determined by the overall, objective, and apart from the perspective of appearance, name, and concept, etc. of two or more service marks used for the same kind of service business, and on the basis of the direct perception that ordinary consumers or traders feel with respect to the service mark, whether there is a possibility of misconception or confusion with respect to the origin of the service mark. A service mark combining letters, letters, or figures must be determined by the entire constituent part, not necessarily by the name, concept, but by an integral combination with each constituent part to the extent that it is deemed natural if the separate observation of the constituent part is made, then it may be simplified by the name, concept, and only part of the constituent part. 97, 97, 97, 90, 97, 99, 97, 90, 97, 97, 90, 97, 90, 97, 90, 99, 90, 90, 90, 97, 90, 90, 9, 2, 1, 2, etc.

In addition, even though a service mark consists of some or all of its trade names, or a service mark consisting of letters and diagrams is the combined service mark of the basic service mark based on its diagrams only, barring any special circumstance such as where the trade name or figure portion is remarkably recognizable to traders or consumers, it cannot be deemed that the service mark is called and conceptualized or conceptualized only including the ordinary name, such as the occupational indication, etc., or the pipe mark part, or that the figure portion alone is called and conceptualized.

Furthermore, the likelihood of mistake or confusion of service marks should be determined by whether there is a possibility of general and abstract mistake or confusion of the quality or source of services with respect to the designated service business, and the existence of disputes between the users of each mark, which is compared with specific mistake or confusion, shall not be considered.

Examining the reasoning of the decision of the court below in light of the aforementioned legal principles and records, the court below applied for each designated service business of April 16, 1986, each of which was registered on October 20, 1987 (hereinafter referred to as the "application number No. 9356") of the pending service mark "(hereinafter referred to as the "original service mark") of this case (hereinafter referred to as the "application number No. 9356) which was applied for ten goods, such as transportation brokerage, transportation, passenger transportation, and automobile transportation, as a designated service business on November 21, 1994.

In comparison with "Seo Tourism Co., Ltd. (2)", "Seo Tourism Co., Ltd. (3)" and "Seo Tourism Co., Ltd. (3)", since the term "Seowon service mark and the cited service mark indicate their nature of each designated service business, this service mark and cited service mark can be called and conceptualized only by "highness". Each designated service mark and quoted service mark are different from the original service mark and cited service mark under Article 6 (2) [Attachment 2] of the Enforcement Decree of the former Trademark Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 83 of Feb. 23, 1998), which are similar to the transport business under Article 108 of the former Enforcement Decree of the Trademark Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 83 of Feb. 23, 1998) and are likely to cause consumers or traders to confuse about the origin of the service business. Thus, it is not proper to accept the judgment of the Supreme Court's grounds for appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Cho Cho-Un (Presiding Justice)