[1] Where an application for a cited service mark is filed at the time of the filing of the applied service mark, laws and regulations that should be applied in rendering a ruling of rejection on the ground that the applied service mark is identical with the cited service mark (=Article 8(1)

[2] In a case where the criteria for determining similarity under Article 8 (1) of the Trademark Act (i.e., when a situation exists) and the cited service mark are cancelled due to the waiver of the holder of the service mark, and there is no prior existence at the time of rejection ruling of the applied service mark, whether the registration of the applied service mark may be refused

[1] Article 8(1) of the Trademark Act, not Article 7(1)7, shall apply in cases where a cited service mark is already filed at the time of filing an application for a pending service mark, and where a rejection ruling is rendered on the ground that the pending service mark is identical or similar to the cited service mark.

[2] Unlike Article 7 (1) 7 of the Trademark Act, the determination of similarity under Article 8 (1) of the Trademark Act is not the market price of the application for trademark registration, but the time of its determination. Thus, if the cited service mark at the time of the rejection ruling of the applied service mark was cancelled as the waiver of the holder of the right to use the service mark and did not exist at the time of the rejection ruling, the registration may not be rejected on the ground that the applied service mark is similar to the cited service mark in applying

[1] Articles 7(1)7 and 8(1) of the Trademark Act / [2] Articles 7(1)7 and 8(1) of the Trademark Act

Plaintiff 1 and one other (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 98Heo565 delivered on September 18, 1998

The judgment below is reversed, and the case is remanded to the Patent Court.

1. The court below determined to the purport that the service mark of this case is similar to one another in that it can be named and recognized as "I, which is the last part of the letter, because it has no distinctive character, and the service mark of this case can not be seen as being considerably recognized for ordinary consumers, and even if the use of the service mark of this case is not the same as the place of use of both the service mark, or the use of the service mark of this case is "in combination with the specialized medical treatment" alone, it is difficult to see that the appearance of this case is somewhat smaller than that of the figure, and it is difficult to see that there is a possibility that ordinary consumers mistake and confusion with the cited service mark if the service mark of this case is used for the designated service.

2. However, in this case, Article 8(1) of the former Trademark Act (amended by Act No. 535 of Aug. 22, 1997, hereinafter referred to as the "former Trademark Act") shall be applied to the service mark for which the patent application of this case was filed on April 14, 1995 and registered on January 9, 197. The cited service mark at the time of the application for the patent application of this case was filed, and in such a case, the cited service mark at the time of the application for the patent application of this case was still filed. In such a case, Article 7(1)7 of the former Trademark Act (amended by Act No. 5355 of Aug. 22, 1997, hereinafter referred to as the "former Trademark Act") is not Article 7(1)7 of the former Trademark Act. Accordingly, the court below erred by applying Article 7(1)7 of the former Trademark Act (amended by Act No. 5083 of Dec. 29, 1995).

Furthermore, unlike Article 7 (1) 7 of the former Trademark Act, the determination of similarity under Article 8 (1) of the former Trademark Act is not the market price of the application for registration, but its assessment is not the standard. In this case, the applied service mark of this case was rejected on May 21, 1997, and the cited service mark was cancelled on April 2, 1997 due to the renunciation of the holder of the right to use the service mark, and the cited service mark was cancelled on April 2, 1997, and had not already existed at the time of the above rejection ruling. Therefore, in applying Article 8 (1) of the former Trademark Act, its registration cannot be rejected on the ground that

Nevertheless, by applying Article 7 (1) 7 of the former Trademark Act, the court below determined that the registration of the pending service mark should be rejected as it is similar to the cited service mark at the time of application. In so doing, the court below erred by misapprehending the interpretation and application of the statutes, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the Patent Court. It is so decided as per Disposition.

Justices Jack-dam (Presiding Justice)