[1] Method of determining similarity of service marks

[2] Whether service mark "SVENSUMITS" and "dials, rums, Smits, and Spans" are similar (negative)

[1] In determining the similarity of a service mark, the appearance, name, and concept of the service mark shall be observed as a whole from the perspective of consumers and shall be determined by whether it is likely to cause mistake or confusion as to the source of the service business from the perspective of consumers. Thus, even if one of the external appearance, name, and concept is similar, if the service mark as a whole can avoid mistake or confusion as to its source clearly, it shall not be deemed similar.

[2] The cited service mark SVENS SUMS has the concept of "the overall length of the service mark", and the cited service mark registered by the earlier application can easily think of a special concept by the figure portion or the Western part, but it seems that the service mark can have a concept of "normal" by Summit part. Thus, both service marks are composed of English, and the cited service mark is composed of English, so it is remarkably different from the cited service mark, and even if the cited service mark is composed of figures and the English characters and one parts, it is hard to see that the cited service mark is "the whole service mark" or "the whole service mark" as it is difficult to see that the cited service mark is "the whole service mark" or "the whole service mark" as it is difficult to see that the cited service mark is "the whole service mark" rather than the service mark "the whole service mark".

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

[1] [2] Supreme Court Decision 95Hu1494 delivered on March 22, 1996 (Gong1996Sang, 1404) Supreme Court Decision 95Hu2084 delivered on July 30, 1996 (Gong1996Ha, 2673) / [1] Supreme Court Decision 95Hu57 delivered on June 30, 1995 (Gong195Ha, 2591)

B. Ulsan Development Co., Ltd. (Patent Attorney Kim Jae-sik et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 95 Ba18 dated June 4, 1996

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal.

According to the reasoning of the decision of the court below, with respect to the similarity between the cited service mark of this case and the registered service mark of another person (registration No. 13147, hereinafter referred to as the cited service mark of this case) by earlier application, the court below determined that the original service mark is a combination of English character “SVEN” and “SUMITS”, and it cannot be deemed as an indivisible combination to the extent that it is deemed natural in the transaction if it is separately observed each part, and that the “SVEN” plays a role in the recognition of “SUMITS” merely because it takes a simple role in the recognition of “SUMITS”, the original service mark can be composed only of “SUITS” as the name of “SUITS”, “SUITS”, and “the same service mark may not be mistaken as “the similar service mark” or “the similar service mark” as “the similar service mark”, “the consumers may not be mistaken or confused with “the similar service mark” as “the similar service mark.”

However, in determining the similarity of a service mark, the appearance, name, and concept of the service mark shall be observed as a whole and differently from the perspective of consumers and shall be determined by whether it is likely to cause mistake or confusion as to the source of the service business. Thus, even if one of the external appearance, name, and concept is similar, if the service mark as a whole can avoid mistake or confusion as to the source clearly, it shall not be deemed similar (see, e.g., Supreme Court Decisions 95Hu57, Jun. 30, 1995; 95Hu1494, Mar. 22, 1996; 95Hu2084, Jul. 30, 1996).

According to the records, in comparison with the cited service mark of this original service mark, it is difficult to think that the original service mark as a whole is 'normal' and that the cited service mark can have a special concept of 'normal' due to the figure portion or 'Smit' portion, so both service marks are composed of some similar parts in terms of concept. However, in appearance, the cited service mark is composed of English only, and it is remarkably different from the cited service mark as a combination of figures, letters, and Chinese characters, so it is difficult to see that the original service mark as a whole consists of "SEN" and "SUITS", and it is difficult to see that the above two services mark is 'normal' and 'business' as a whole, and it is difficult to see that it is different from the whole service mark as a whole from the service mark as a whole, and it is difficult to see that there is an objective confusion between consumers and consumers.

Nevertheless, the court below judged that both service marks are similar as a whole on the premise that the original service marks can be separately observed. Thus, the court below erred by misapprehending the legal principles on determining similarity of service marks and failing to exhaust all necessary deliberations, which affected the decision of the court below. The grounds for appeal on this point are with merit.

Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)