[1] Criteria for determining similarity of service marks

[2] Whether the registered service mark's figure is similar to the original Pison K.Fouron, and the personal service mark's service mark's "FUR SAS", and " figure + Four Seasons Hotels and Rorts" (affirmative)

[1] Whether a service mark is similar or not shall be determined by whether there is a concern for misconception or confusion as to the subject of the transaction service in any one of the two service marks, which are used for the same kind of service business, after observing them objectively, comprehensively, and objectively in terms of their external appearance, name, and concept, and even if one of the external appearance, name, and concept is similar, if it is possible to avoid misconception or confusion clearly as a whole, it shall not be deemed a similar service mark. However, even if there are different parts, if it is easy for ordinary consumers to mistake or confuse as to the subject of the transaction service, it shall be deemed a similar service mark.

[2] In preparation for the "FSon" and "FOES SNS", the cited service mark (2)", the above service mark is not similar in appearance, but it is difficult to see that the registered service mark is a combined service mark as well as figures, and it can not be seen that there is an integral combination with the figure portion to the extent that it is natural to observe the mark separately, and as such, it is possible to separate the figure portion from the figure portion or the word portion, the "FS" as a whole is composed of the similar service mark as well as the similar service mark, and therefore, it is difficult to see that the registered service mark portion and the word portion can be seen as being a combination with the other similar service mark, and therefore, it is difficult to see that there is no reason to see that the "FSSS" portion as a whole is a similar service mark that indicates the first part of the registered service mark's trade name, and therefore, it is difficult to see that the part of the "HS2" portion is a similar service mark.

[1] Articles 8(1) and 71(1)1 of the Trademark Act / [2] Articles 8(1) and 71(1)1 of the Trademark Act

[1] Supreme Court Decision 96Hu1163 delivered on March 28, 1997 (Gong1997Sang, 1240), Supreme Court Decision 97Hu1146 delivered on April 24, 1998 (Gong1998Sang, 1501), Supreme Court Decision 97Hu2026 delivered on May 22, 1998 (Gong1998Ha, 1766) / [2] Supreme Court Decision 86Hu129 delivered on February 24, 198 (Gong1987, 540), Supreme Court Decision 89Hu421 delivered on February 13, 190 (Gong190, 653), Supreme Court Decision 89Hu194979 delivered on July 24, 199 (Gong199, 1947Hu1939494 delivered on July 24, 199)

Posle Pisle Hotel (Law Firm Central Patent Office, Attorneys Lee Byung-ho et al., Counsel for the plaintiff-appellant)

Gawon Housing Co., Ltd. (Patent Attorney Kim Young-soo, Counsel for defendant-appellant)

Korean Intellectual Property Trial Office Decision 95Na294 dated May 31, 1997

The decision of the court below is reversed and the case is remanded to the Patent Court.

The grounds of appeal are examined.

According to the reasoning of the decision of the court below, the court below rejected the registered service mark of this case (No. 22777 of the registered service mark) which was applied on September 18, 1991 and registered on December 29, 193 as well as the cited service mark (No. 22777 of the registered service mark) in comparison with the cited service mark (1) which was first applied on December 29, 193, and the cited service mark (2). The registered service mark of this case and the cited service mark of this case are not similar to appearance, but can be called as the "original Pison Pison", or the "Pison Pison" or the "Pison Pison" of the first part, but the cited service mark of this case can be called as the "Pison Pison Pison" or the "Pison Pison" of this case, and thus, the concept of "the registered service mark of this case is different from each other because it is not identical to the registered service mark of this case."

Whether or not a service mark is similar shall be determined by whether or not there is a concern for mistake or confusion as to the subject of the transaction service in any one of the three aspects of the external appearance, name, and concept of the service mark which is used for the same kind of service business. Even if one of the external appearance, name, and concept is similar, if it is possible to avoid mistake or confusion clearly as to the whole, it shall not be deemed a similar service mark. However, even if there are different parts, if it is easy for ordinary consumers to mistake or confuse as to the subject of the transaction service, it shall be deemed a similar service mark (see Supreme Court Decision 97Hu2026, May 22, 1998).

In comparison with the registered service mark and the cited service mark of this case, both service marks are not similar. However, the registered service mark of this case is deemed to be a combined service mark with diagrams. Since it is difficult to view that the figure part is considerably formed compared with the letter part, all the figure part and the letter part can be deemed to be an integral part. Thus, it is possible to separate and observe only the figure part or each letter part, so it is possible to separate and observe the figure part from the original part. Furthermore, from among the letter part, the Gapopoposi Pon in Korean only the part of the Gapoposi Pol which indicates the first part of the trade name of the respondent or the latter part of the Gapopopoon, the Kapoon part, which is the part of the Kapopoon, can be referred and conceptualized only by the Kapoon service business, which is the part of the Kapoon, which is the part of the 'business mark', and therefore, it can be seen that the 'business mark' of this case is a similar service mark.

Nevertheless, the court below rejected the claimant's assertion that the registered service mark of this case was registered in violation of the provisions of Article 8 (1) of the Trademark Act. Thus, the decision of the court below contains an error of law by misunderstanding the legal principles as to the determination of similarity of service marks and failing to exhaust all necessary deliberations, and it is obvious that such illegality affected the result of the decision. Thus, the ground of appeal pointing this out has merit.

Therefore, the decision of the court below is reversed, and the case is remanded to the Patent Court corresponding to the original court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)