(a) Requirements for refusal of trademark registration on the grounds of falling under Article 9(1)11 of the former Trademark Act (wholly amended by Act No. 4210 of Jan. 13, 1990) and Article 9(1)11 of the same Act (wholly amended by Act No. 4210 of Jan. 13, 1990), which provides that “a trademark which misleads the quality of goods or might deceive consumers”

B. Whether it is widely known in Korea through a broadcast to the extent that it is recognizable to the extent that it can be perceived as a trademark of a person registered with the cited trademark “” among domestic consumers or traders (negative)

A. The purpose of Article 9 (1) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 190) is not to protect another person's registered trademark by earlier application, but to protect the trust of ordinary consumers or traders regarding the quality, location, etc. of goods using a trademark widely recognized as a specific person's trademark. Thus, in order to refuse a registration of a trademark on the ground that it falls under Article 9 (1) of the same Act, because it is similar to the registered trademark of another person whose designated goods are different, there is a concern that the other person's registered trademark might mislead general consumers or traders by causing misconception of the origin of goods, and thus, it is necessary to be widely known as another person's trademark to the extent that it can be perceived as a trademark if the other person's registered trademark is a domestic consumer or trader.

(b) Even if “Sampf” refers to the main figure of a cartoon film “Sick”, and is widely known in the Republic of Korea through a broadcast, such circumstance alone is insufficient to readily conclude that it is widely known as a trademark to the extent that it can be perceived as a trademark of a person registered with the cited trademark “Sampf” as a trademark among domestic consumers or traders.

Article 9 (1) of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

A. Supreme Court Decision 91Hu592 delivered on November 26, 1991 (Gong1992, 314) 91Hu1687,1694 delivered on May 12, 1992 (Gong1992, 1865) 92Hu278 delivered on July 28, 1992 (Gong192, 2670)

Patent Attorney Cho Chang-hee, Counsel for defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Appeal Trial Office 192.3.31. 90 Appellant 1857 Decision

The original adjudication shall be reversed.

The case shall be remanded to the Korean Intellectual Property Office for Appeal.

The grounds of appeal by the applicant's attorney are examined.

1. The court below held that the applicant's trademark " "", the original trademark of October 31, 1990, which was the original trademark which was rejected on March 14, 1989, was a character trademark composed of "slick Kin", and the cited trademark which was registered on November 28, 1983, applied on November 18, 1982, is similar to the original trademark, and the cited trademark is referred to as "slick", and the cited trademark is referred to as "a certified Slick", the main trademark of an cartoon film "SB.V", which is the main trademark of an cartoon film "SB.V," and is widely known to the general public through broadcasting, and is registered as a trademark on March 14, 1989, and thus, it is considerably known that an enterprise's trademark activities are considerably different from the original trademark in terms of its structure and activities, which are widely known to the general consumers, and thus, it is also widely known that the new trademark is one of the designated goods in the main industrial sector.

2. However, the purpose of Article 9(1)1 of the Trademark Act is not to protect another person’s registered trademark by earlier application, not to protect another person’s registered trademark, but to protect trust by preventing mistake or confusion between ordinary consumers or traders with respect to the quality, origin, etc. of goods using a trademark widely recognized as a trademark by an earlier application. Thus, in order to refuse the registration of a trademark on the ground that the trademark falls under Article 9(1)11 of the Act because it is similar to the other person’s registered trademark where the designated goods are different, and thus, it is likely that ordinary consumers or traders might be affected by misconception of the origin of goods, and thus, it is necessary to widely recognize another person’s trademark as a trademark to the extent that it can be perceived as a trademark if the other person’s registered trademark is a domestic consumer or trader (see, e.g., Supreme Court Decision 89Hu16979, May 11, 190; 197Hu1979, Dec. 29, 19797; 2009Hu169697

However, as recognized by the court below in the case of this case, even though the "Ssp" refers to the main figures of the cartoon film "Sppppppp", and is widely known in the Republic of Korea through a broadcast, such circumstance alone is insufficient to readily conclude that it is widely known as a trademark to the extent that it can be perceived as a trademark of a person registered with the cited trademark if it is a "Sppp" among domestic consumers or traders, and even based on all evidence shown in the record, it is difficult to recognize that the "Sppp" is widely known as a trademark of a person registered with the cited trademark.

In addition, in light of the circumstances in which a company's activities are conducted in the modern society as stated by the court below, even if a particular trademark or a similar trademark is used for other goods that are not related to goods produced and sold by the trademark owner, a general consumer or a trader may mislead or confuse that the trademark or goods used by a third party are used or produced and sold by a person having a trademark right or a special relation with the trademark owner, even if the trademark or goods used by a third party are likely to be used or produced and sold by a domestic consumer or a trader, the trademark of this case is widely known as the trademark owner's designated goods of this case to the extent that it can be perceived as being produced and sold by the trademark owner's trademark right holder's designated goods of this case, but the cited trademark falls under Article 9 (1) 11 of the "Act". Thus, the court below should have further examined whether the cited trademark of this case is in relation to the cited trademark of this case.

Nevertheless, the court below decided to the effect that the trademark at issue constitutes Article 9 (1) 11 of the "Act" solely for the reasons as stated in the judgment. Thus, the court below did not properly examine the original decision and did not err by misapprehending the rules of evidence or by misapprehending the legal principles as to Article 9 (1) 11 of the "Act", and it is obvious that such illegality has affected the trial decision. Thus, there is a reason to point this out.

3. Therefore, the case shall be reversed, and the case shall be remanded to the appellate court for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.