[1] Criteria for determining similarity of trademarks

[2] Whether the designated goods are similar to the trademark "HPEPL US" and "HOME", which is bound by the classification of goods and the classification of goods and the classification of goods (bakbak, bak, spath and rice rice) (negative)

[1] In determining similarity of trademarks, the similarity of trademarks shall be determined by observing the appearance, name, and concept of trademarks in a general and separately from the standpoint of consumers to mislead or confuse the origin of goods. Thus, even if one of the external appearance, name, and concept is similar, if the trademark as a whole can clearly mislead or confuse the origin, it shall not be deemed similar.

[2] The application trademark "HEM" combines the word "HE" with the word "HE" and the word "PLUS", and there is a relatively less natural aspect to separate and observe the term "HE" and "PL US" from the viewpoint of "HE". However, even if the designated goods of the applied trademark belong to the category of goods of the third category (such as bread, spaw, spaw, HE GEN, HEN", the term "OEM" and "IEMMMMMM" are not applied to the goods of the designated goods of the applied trademark, so it is difficult to see that there are many kinds of designated goods of the "HEM" or "IEMMMMMM" as the "products of the applied trademark, etc.", the term "IEMMMM" or "IEMMMMMMMMMMMMMM", the term "IEMMMMMMMMMM" or "IEMMMMMMMMMM,", the "IEMMMMMMMME",", etc.

[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 2, 1996 (Gong1996Sang, 1404), Supreme Court Decision 95Hu1685 delivered on April 12, 1996 (Gong1996Sang, 1587), Supreme Court Decision 95Hu2084 delivered on July 30, 1996 (Gong1996Ha, 2673), Supreme Court Decision 96Hu801 delivered on March 14, 1997 (Gong197Sang, 1115), Supreme Court Decision 97Hu2866 delivered on July 14, 198 (Gong198Ha, 2120), Supreme Court Decision 9Hu29839 delivered on October 13, 1998 (Gong198Ha, 2120).

Samsung C&T Co., Ltd. (Patent Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Tribunal Decision 97Na416 dated January 30, 1998

The original decision is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are examined.

According to the reasoning of the decision of the court below, the court below affirmed the registration of the original trademark under Article 7 (1) 7 of the Trademark Act, on the ground that the trademark of this case (hereinafter referred to as the "original trademark") is similar in comparison with the "HOME" (hereinafter referred to as the "HOME") registered by the patent application of this case (hereinafter referred to as the "HOME") and the "HOME" (registration number omitted) registered by the patent application of this case. The original trademark is not particularly new concept by combining "HOE" and "PLUS", but it is not a sort of simple and rapid combination to the extent that it is natural if it is separated and observed. In this case, since the title and concept are the same as those of the cited trademark in this case, if both trademarks are used together for the same or similar designated goods, it may cause misconception and confusion about the origin of goods to ordinary consumers. Thus, the registration of the original trademark is justified in accordance with the judgment of the court below.

However, in determining the similarity of trademarks, the similarity of trademarks shall be determined by observing the external appearance, name, and concept of the trademark as a whole and separately from the perspective of consumers to mislead or confuse the source of goods. Thus, even if one of the external appearance, name, and concept is similar, if a trademark as a whole can clearly mislead or confuse the source, it shall not be deemed similar (see, e.g., Supreme Court Decisions 95Hu1494, Mar. 22, 1996; 95Hu2084, Jul. 30, 1996; 97Hu2804, Oct. 13, 1998).

According to the records, the term "HME" and the term "PLUS" are combined with the word "HME" and it is hard to see that there is a relatively less natural aspect to separate and observe the term into "HME" and "PLUS" as a combination of the word "HM" and "HE". However, there are many kinds of products belonging to the designated goods of the original trademark, such as "heat cater", "E GEN", "EN", "Cheat, "HMME", "HEME" or "HEMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM," "EMMMMMMMMMMMMMMMMMMMMMMMMMMMMM," "MMMMMMMMMMMMMMMMMMMMMMMMMMMM,", "IEMMMMMMMMMMMMMMMMMMMMEEEE", "",", etc.

Thus, the original trademark and the cited trademark are not similar to each other when observing them in a general and separately from the perspective of ordinary consumers, and therefore, even if both trademarks are used together on the same or similar designated goods, there is no concern for ordinary consumers to mislead or confuse the origin of goods. However, the court below erred by misapprehending the legal principles on determining the similarity of trademarks and failing to exhaust all deliberations, which affected the conclusion of the decision.

The appeal pointing this out is with merit.

Therefore, the original decision shall be reversed, and the case shall be remanded to the Korean Intellectual Property Office corresponding to the original decision, and it is so decided as per Disposition by the assent of all participating Justices

Justices Song Jin-hun (Presiding Justice)