[1] Method of determining similarity of trademarks

[2] The case holding that the applied trademark " " and the pre-registered trademark " " cannot be deemed similar marks because it is difficult to see that general consumers are likely to mislead or confuse the origin of goods even if both trademarks are used together on the designated goods identical or similar to the same or similar trademarks when observing the appearance and name of each other, since they cannot be deemed to fall under Article 7 (1) 7 of the Trademark Act

[1] Whether a trademark is similar shall be determined depending on 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 observing the appearance, name, and concept of the trademark objectively, comprehensively, as a whole, and on the basis of a direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if there is little possibility that the trademark may be separated or discounted, or if it can avoid confusion of the source clearly at the time of observing the whole, it shall not be deemed a similar trademark.

[2] The case holding that although the concept of the trademark " " " and the registered trademark " " are relatively low in terms of their designated goods, even though they are similar in terms of their concept, they cannot be deemed similar marks because it is difficult to see that there is a concern for ordinary consumers to mislead or confuse the origin of goods even if both trademarks are used together on the designated goods identical or similar in terms of objective, overall, and external observation as different in terms of appearance and name, even if they are used together on the designated goods identical or similar to each other, the trademark applied for registration does not fall under Article 7 (1) 7 of the Trademark Act.

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

[1] Supreme Court Decision 97Hu1146 delivered on April 24, 1998 (Gong1998Sang, 1501) Supreme Court Decision 96Hu2258 delivered on June 24, 1997 (Gong1997Ha, 2178) Supreme Court Decision 2005Hu2908 Delivered on August 25, 2006 (Gong2006Ha, 1637)

The United Kingdom-gun (Patent Attorney Lee In-bok, Counsel for defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

December 24, 2009

1. The decision made by the Intellectual Property Tribunal on September 17, 2009 on the case No. 2008 Won12784 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The background of the application and the trial decision of this case

(1) On February 27, 2008, the Plaintiff filed an application (application number: No. 2008-9207) for a trademark with the goods, etc. indicated in [Attachment 1] as designated goods (hereinafter “instant applied trademark”). However, on August 8, 2008, the Korean Intellectual Property Office notified the grounds for rejection on the ground that “the instant applied trademark shall not be registered under Article 7(1)7 of the Trademark Act because it is similar to the following prior registered trademark, etc. in relation to the goods indicated in [Attachment 2], and on October 30, 2008, it did not resolve the grounds for rejection on the ground that it deleted part of the designated goods (i.e., mountain, mountain, medicinal, oriental medicine, health-supporting food whose principal ingredient is arbitr, arbitr, etc.).”

(2) Accordingly, the Plaintiff filed a petition for an appeal against the foregoing decision of refusal, and the Intellectual Property Tribunal deliberated on the above case as 208 Won12784 on September 17, 2009, and rendered a decision of refusal to accept the Plaintiff’s petition on the ground that “ Even if the appearance of the applied trademark differs from that of the applied trademark, it is similar not only to one another in light of the overall, objective, and external observation as well as the designated goods are similar, and thus, it cannot be registered under Article 7(1)7 of the Trademark Act.”

(b) Preregistered trademark;

(1) Marks:

(2) Date of application/registration date/registration number: July 18, 2003/ June 21, 2006/ No. 6672955

(3) Designated goods: “The 30th category of rice, scam, scam, edible rice powder, edible rice powder, scambry powder, scam, scam bean, scub, scub and scambling”

(4) Person entitled to registration: Neglecting and food corporation

[Reasons for Recognition] Evidence Nos. 1 through 5, Evidence No. 6-1, the purport of the whole pleadings

2. Whether the trial decision of this case is legitimate

Even if there are similar parts in the concept of the applied trademark of this case and the pre-registered trademark of this case, the decision of this case which judged otherwise is unlawful since the decision of this case is not similar to those of the pre-registered trademark in comparison with the pre-registered trademark, even though the trademark of this case is similar to the concept of the pre-registered trademark, it is examined as to whether it falls under Article 7(1)7 of the Trademark

A. Criteria for judgment

The similarity of a trademark shall be determined based on whether there is a concern for ordinary consumers or traders to mislead or confuse the source of the designated goods in the transaction of the designated goods by observing the external appearance, name, and concept objectively, comprehensively, and systematically, and on the basis of the direct perception that ordinary consumers or traders feel about the trademark. Thus, even if there is a similar part between the compared trademarks, if it is unlikely that the part alone may be separated or recognizable, and if it can avoid confusion of the source clearly when observing the whole, it cannot be deemed a similar trademark (see Supreme Court Decision 2005Hu2908, Aug. 25, 2006, etc.).

B. Whether the mark is similar

(1) Preparation of appearance

The pending trademark of this case is a combined trademark with the color of the Korean color "natural color" and the red Chinese color "compact" in the shape of a fluence, and is placed in the center. Under which the trademark of this case is a combined trademark with the color of the Korean color "Korean family happiness guardian" and placed again, while the registered trademark of this case is a character trademark in the Korean language of "natural pet", the two trademarks are different from each other depending on the composition, arrangement, and figure of the letters.

(2) Preparation for a title

In light of the fact that: (a) the trademark applied for trademark in this case is referred to as a "natural difficulty" as a part of the text that is widely posted to the center, and thus it is difficult to distinguish the trademark in this case from the trademark applied for trademark in this case; (b) it is difficult to derive any concept or name only with the figure; and (c) even if the character, which is the character, is contrary to the center, is somewhat different from the type, size, and color of the character, it is difficult to see that ordinary consumers or traders separately refer to it; and (b) it is reasonable to see that the trademark applied for trademark in this case and the registered trademark in this case may avoid confusion as to its source in its name. Therefore, it is deemed that the trademark applied for trademark in this case and the registered trademark in prior to the trademark in this case may avoid confusion as to its source in its name.

(3) Preparation for concept

On the other hand, the trademark of this case is referred to as "voluntary in nature," and the prior registered trademark is referred to as "voluntary in nature (Evidence No. 1)." Thus, the two trademarks are similar in terms of their concepts.

(4) Comprehensive determination

In light of the fact that the term “natural” commonly included in the text portion of the two trademarks is an environmentally friendly or suggesting term of designated goods, and that the term “natural” is frequently used on multiple registered trademarks containing various kinds of food as designated goods (No. 9-1 through No. 81), the concept in relation to the designated goods is relatively low to the extent that the concept contributes to the entire distinctive character. Thus, even if the trademark in this case and the registered trademark in this case are similar in the concept, it is difficult to deem that there is a concern for ordinary consumers to mislead or confuse the origin of goods even if the two trademarks are used together on the designated goods identical or similar to the trademark in this case, even if they are used on the same or similar designated goods. Accordingly, two trademarks cannot be seen as similar marks.

C. Sub-committee

The trademark of this case does not correspond to Article 7 (1) 7 of the Trademark Act because the prior registered trademark and the mark are not similar. Thus, the decision of this case, which different conclusions, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

[Attachment 1]: omitted

[Attachment 2]: omitted

Judges Kim Jong-hwan (Presiding Judge) and Kim Jong-chul