[1] Criteria for determining similarity of trademarks, and whether the similarity of trademarks consisting solely of a technical mark is subject to consideration in determining similarity between trademarks and other distinctive trademarks (affirmative)

[2] Whether the cited trademark "non-sports" has distinctiveness for the products of the category of fruit (affirmative), and whether the trademark applied for is similar to the trademark "Bez" (affirmative)

[1] The similarity of a trademark shall be determined by observing the external appearance, name, and concept of the trademark in a general, objective, and separately from the user’s standpoint to cause misconception or confusion as to the origin of the product. Even if any of the external appearance, name, and concept is similar, if a trademark as a whole is clearly able to avoid misconception or confusion as to the origin of the product, it shall not be deemed similar. If one of the two trademarks, which are subject to comparison, has no distinctive character as to the origin of the product, is identical or similar to one of the two trademarks, so that it can avoid misconception or confusion as to the origin of the product as a whole, even if they are identical or similar to that of the trademark compared to the trademark, and even if there is a little possibility that consumers can avoid misconception or confusion as to the origin of the product, the distinctiveness of the trademark should be considered in determining the similarity of a trademark, which is different from that of the trademark alone.

[2] In light of the level of English distribution in our country, it is difficult to see that a general consumer or a trader with respect to the goods of the category of the designated goods of the cited trademark “bats” and the cited trademark “bats” can be viewed as having the concept of “bats” in English short, so it is difficult to view “bats” as having the meaning of “bats” in English short, and thus, it cannot be said that there is no distinctiveness of one’s own goods with respect to the designated goods. The applied trademark “bats” is a similar trademark similar to those of the cited trademark “bats” in appearance and name, which is likely to mislead or confuse the origin of the goods if used for the designated goods of the same or similar kind.

[1] Article 7 (1) 7 of the Trademark Act / [2] Articles 7 (1) 7 and 23 (1) of the Trademark Act

Lawing System and Co., Ltd. (Patent Attorney Jin-hun et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2002Heo383 delivered on April 4, 2002

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

1. According to the reasoning of the judgment below, where a trademark consists of a combination of a non-distinctive part and a non-distinctive part, the court below determined to the effect that the trademark of this case is identical in appearance to the trademark of this case and the cited trademark of this case, without any determination as to the plaintiff's assertion that "non-competitive part", which is the cited trademark of this case, has no distinctive character as to the designated goods, under the premise that the trademark of this case, which is the cited trademark of this case, has no distinctive character as to the designated goods, shall be compared to the other trademark of this case except for the non-distinctive part when determining the similarity with the other trademark of this case. However, in the case of a trademark consisting solely of a technical (technical) mark, the trademark of this case, which is the cited trademark of this case, has no distinctive character as to the trademark of this case, and the beginning, middle, and second negative part are identical in appearance, and although the trademark of this case was added to the first negative part, the trademark of this case and the cited trademark of this case can not be registered under Article 7 (1).

2. However, the similarity of a trademark shall be determined by examining the appearance, name, and concept of the trademark as a whole from the consumer’s standpoint to mislead or confuse the origin of the product. Even if any of the external appearance, name, and concept is similar, if a trademark as a whole is able to clearly mislead or confuse consumers as to the origin of the product, it shall not be deemed similar. If one of the two trademarks subject to comparison has no distinctive character of the product, if the trademark as a whole is identical or similar to one of those of the two trademarks, then it is highly likely that consumers can avoid misconception or confusion as to the origin of the product. Thus, in determining the similarity of a trademark which is different from that of a trademark consisting solely of a technical mark, the distinctiveness of the trademark should be considered in determining the similarity of the trademark. However, the court below erred by misapprehending the legal principles as to the similarity of distinctiveness of the trademark.

3. Therefore, considering the distinctiveness of the cited trademark "non-use" and the similarity of both trademarks in the records, even in light of our country's English dissemination level, it is difficult to see that a general consumer or a trader with respect to the goods of the category i.e., the designated goods of the cited trademark of this case and the cited trademark "non-use" can be directly perceived as having the concept of "non-use, small amount, etc." as the Korean sound of English, as alleged by the plaintiff, as the trademark of this case and the cited trademark of this case, "non-use" cannot be viewed as having no distinctive character with respect to the designated goods. However, the same applies to the trademark of this case as the trademark of this case, which is similar to the trademark of the cited trademark of this case, which is similar to the trademark of this case and similar to the trademark of this case, may cause misconception or confusion as to the source of goods. Thus, the above illegality of the court below did not affect its conclusion.

Ultimately, the court below's decision that the trademark applied in this case cannot be registered because it is similar to the cited trademark which is the trademark applied in the earlier application is just, and there is no error of law such as misunderstanding of legal principles, incomplete hearing, or omission of judgment which affect the conclusion of the judgment as alleged in

4. Therefore, the appeal is dismissed, and all 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 Lee Jin-hun (Presiding Justice)