[1] Where a mark similar to another person's registered trademark is used only as a design, whether it falls under the scope of the right of the registered trademark (negative)

[2] The case holding that the mark of the two-school pattern used as the spawn head board decoration does not fall under the scope of the right of the registered trademark since it cannot be deemed that it was used as a trademark

[1] Even if a mark similar to another person's registered trademark is used, if it cannot be recognized as the use of a trademark due to the use of a trademark as a design exclusively, rather than to indicate the source which is the essential function of the trademark, it does not fall under the scope of the right of the registered trademark

[2] The case holding that since the two-school pattern marks used as a spawn head plate decoration in the beds cannot be seen as being used as trademark, they do not fall under the scope of the right of the registered trademark

[1] Article 75 of the Trademark Act / [2] Article 75 of the Trademark Act

[1] Supreme Court Decision 96Do1424 delivered on February 14, 1997 (Gong1997Sang, 830) Supreme Court Decision 2002Hu1324 delivered on February 14, 2003 (Gong2003Sang, 845)

Plaintiff

Defendant

Patent Court Decision 2003Heo1109 Delivered on July 25, 2003

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

1. As to the third ground for appeal

A. The lower court determined that the Plaintiff’s use mark falls under the scope of the right of the instant registered trademark, on the ground that “the Defendant’s registered trademark (registration number omitted) and the mark used by the Plaintiff (hereinafter referred to as “Plaintiff’s use mark”) are identical, and the Plaintiff’s use mark are also identical to the part in which the Plaintiff’s use mark was used and the designated goods of the instant registered trademark, and that the Plaintiff’s use mark falls under the scope of the right of the instant registered trademark, on the ground that the Plaintiff’s use mark functions as

B. However, we cannot accept the above judgment of the court below.

Even if a mark similar to another person’s registered trademark is used, it does not constitute the scope of the right of the registered trademark if it cannot be recognized as the use of the trademark due to the use of the trademark entirely by the design, rather than to indicate the source that it is an essential function of the trademark (see Supreme Court Decisions 96Do1424, Feb. 14, 1997; 2002Hu1324, Feb. 14, 2003, etc.).

According to the records, the plaintiff's mark is widely used as a two-school ties, which is called a two-school ties (see, e.g., sound 378 photographs), and from around August 29, 198, the date of the application of the trademark of this case (see, e.g., the date of August 29, 200), the number of households that used this door using the mark identical to the registered trademark of this case as a sGHHKBD "S", "SGHGHTND", or two-school ties". The plaintiff's mark was widely used in the name of the plaintiff's new lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag lag.

Nevertheless, the court below held that the scope of the right of the registered trademark of this case extends to the plaintiff's mark since the plaintiff's mark was used as a trademark. In so doing, the court below erred by misapprehending the legal principles as to the use of the trademark, and there is a ground for appeal No. 3

2. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Zwon-won (Presiding Justice)