[1] In a case where there is a similar part between the criteria for determining the similarity of trademarks and the trademark compared thereto, if there is little possibility that the trademark alone may be separate and discounted, or where the overall observation of the source may clearly avoid confusion, whether the trademark may be deemed a similar trademark (negative) / Whether the above legal principle applies likewise to service marks (affirmative)

[2] The case holding that the registered service mark is not similar to the registered service mark or the pre-registered trademark, in case where Gap corporation, the holder of the pre-registered service mark and pre-registered trademark Eul, the holder of the pre-registered service mark, and the pre-registered service mark Eul, the holder of the pre-registered trademark, filed a petition for a registration invalidation trial on the ground that the registered service mark constitutes Article 7 (1) 7 of the Trademark Act, and the Korean Intellectual Property Tribunal rendered a decision invalidating the registration of the registered service mark, in which the registered service mark is not similar to the registered service mark or pre-registered trademark

[1] Articles 2(3) and 7(1)7 of the Trademark Act / [2] Articles 2(3) and 7(1)7 of the Trademark Act

[1] Supreme Court Decision 2005Hu2908 Decided August 25, 2006 (Gong2006Ha, 1637) Supreme Court Decision 2009Hu4193 Decided December 9, 2010

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

CM Global Co., Ltd. (Patent Attorney Lao-ok et al., Counsel for defendant-appellant)

Patent Court Decision 2014Heo2412 Decided July 24, 2014

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The similarity of trademarks shall 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 observing the external appearance, name, and concept objectively, as a whole, in a separate and independent manner, and on the basis of the direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if it is unlikely that the part alone may be separated or recognizable may clearly avoid confusion of the origin when observing the whole part, it shall not be deemed a similar trademark (see, e.g., Supreme Court Decisions 2005Hu2908, Aug. 25, 2006; 2009Hu4193, Dec. 9, 2010). Such a legal doctrine equally applies to service marks pursuant to Article 2(3) of the Trademark Act.

In light of the above legal principles and the records, the court below is just in holding that the registered service mark (registration number omitted) of this case (registration number omitted) of this case, which consists of “sloves sales brokerage business, clothing sales agency business, and clothing sales agency,” etc. as designated service business under the circumstances as stated in its holding, is not similar to the prior registered service mark or prior registered trademark in the judgment of the court below, which is composed of “sloves sales brokerage business,” and is not similar to the prior registered service mark or prior registered trademark in other judgment of the court below, and there is no error in the misapprehension of legal principles as to the determination of similarity of the service mark, lack of reason, inconsistency with the reasoning, etc., as otherwise alleged in the ground of appeal.

The Supreme Court Decisions 2012Hu2869 Decided May 16, 2014, cited in the grounds of appeal, including the Supreme Court Decision 2012Hu2869 Decided May 16, 201, are not appropriate to be invoked in the instant case. Meanwhile, the assertion that the registered service mark of this case constitutes a quality-based service mark under the former part of Article 7(1)11 of the Trademark Act, and its registration should be invalidated, is asserted only in the final appeal,

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.

Justices Park Poe-young (Presiding Justice)