[1] In a case where there is no possibility that consumers mistake or confuse the quality or origin of a product, even if there is a similar part between the compared trademarks, whether a request for prohibition of use of a trademark may be made (negative), and whether the above legal principle applies likewise to service marks and business marks under Article 2 subparagraph 1 (b) of the Unfair Competition Prevention and Trade Secret Protection Act (affirmative)

[2] The standard time to determine whether to acknowledge a claim for prohibition under Article 65 of the Trademark Act and Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act (= at the time of closing of argument in a factual hearing)

[3] In a case where Gap corporation using the mark such as " "" and " "" sought prohibition against the use of the mark against Eul corporation using the mark, such as " " "" and "", the case holding that the above mark is not likely to cause mistake or confusion among ordinary consumers or customers as to the service or the source of business when comprehensively and comprehensively considering the transaction circumstances, etc.

[1] Articles 2(3), 65, and 66(1)1 of the Trademark Act, Article 2 subparag. 1(b), and Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 65 of the Trademark Act, Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act / [3] Articles 2(3), 65, and 66(1)1 of the Trademark Act, Article 2 subparag. 1(b), and Article 4 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 95Hu1821 Decided July 30, 1996 (Gong1996Ha, 2670), Supreme Court Decision 2010Da20778 Decided December 27, 201 (Gong2012Sang, 181) / [2] Supreme Court Decision 2006Da22722 Decided November 13, 2008 (Gong2008Ha, 165) Supreme Court Decision 2009Da22037 Decided June 25, 2009 (Gong2009Ha, 1216) Supreme Court Decision 201Da9822 Decided December 22, 2011 (Gong2012Sang, 161)

Oracle International Commention (Attorney Cho Tae-soo et al., Counsel for the plaintiff-appellant)

UDC Co., Ltd. (Law Firm Dakel, Attorneys Dog-dam et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na 11995 decided October 13, 2011

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

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

1. Whether a trademark is similar shall be determined on the basis of whether there is a concern for general consumers or traders to mislead or confuse the origin of the designated goods in the transaction of the designated goods by objectively, comprehensively, and systematically observing the external appearance, name, and concept of the trademark. Thus, even if there is a similar part between the compared trademarks, it shall be determined on the basis of general transaction circumstances surrounding the goods, i.e., the nature of the market, the consumer's re-power or knowledge, the degree of caution, whether the compared trademark is an expert, age, sex, the characteristic and transaction method of the goods in question, place of transaction, post-management, the degree of awareness of the trademark, the consumer's daily life, etc. In addition, if there is no concern for consumers to mislead or confuse the quality or origin of the goods, the prohibition of use of the trademark cannot be deemed as a similar trademark, and such legal principle shall be determined on the basis of Article 201 (1) 205 (see Supreme Court Decision 2000Da172971, Jul. 27, 2019). 207.

2. We examine the above legal principles and records.

According to the reasoning of the judgment below, the Plaintiff’s mark, “,” “,” etc., which is the Plaintiff’s mark as indicated in the judgment of the court below, refers to “ocle,” and the Defendant’s mark as indicated in the judgment of the court below, “,” and “, etc.,” which are the Defendant’s mark as indicated in the judgment of the court below, are referred to as “ocle,” which is its essential part, and there is no possibility that both marks are similar in terms of name. However, while the Plaintiff’s mark consists of “ORCLE” or “Oricle,” which is the purport of “trust,” the Defendant’s mark consists of the English language “OriCLE” or “Oricle,” which is the English language with the intention of “trust,” the shape of the Defendant’s mark consists of the word “Macle” or “U” and the English language “U” with different appearance, and the Defendant’s mark does not have any special concept, so it cannot be compared with each other.

Furthermore, according to the reasoning of the lower judgment and the evidence duly adopted and examined by the lower court, the Plaintiff’s marks are widely known among domestic consumers regarding the “related database management system (RBS) industry,” but the Defendant, since its establishment on January 19, 2001, has been engaged in the business of “long-day financial softs, IPTV’s Financial Broadcasting Promotion (hereinafter “Defendant business”)” against the financial institutions, communication and broadcasting institutions, etc., and then continued to engage in the business using the Defendant marks on March 2007, after changing the trade name into the “stock Company U-HC,” and then continued to engage in the business of the Defendant, and around July 2007, the Plaintiff’s marks were widely known to not only the Prime Minister of Science and Technology, but also the Plaintiff’s general consumers or consumers in charge of the business of small scale 1.5 billion won or more at the time of the closing of argument as well as the Plaintiff’s general consumers’ marks on the business of small scale 1.5 billion won or more.

Considering the above circumstances and circumstances comprehensively and comprehensively, the Plaintiff’s marks and the Defendant’s marks are likely to mislead or confuse general consumers or traders with regard to their service business or business sources.

Therefore, the judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error in the misapprehension of legal principles as to the infringement of service mark rights or the confusion of business entities

3. 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 on the bench.

Justices Park Poe-dae (Presiding Justice)