Whether excursion vehicles and gaseous ccushion machinery and apparatus can be seen as goods of the same kind or similar in the classification of the designated goods of a trademark (negative)

A trademark identical with or similar to a registered trademark based on an earlier application shall not be deemed to fall under Article 9 (1) 7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990) unless it is used for goods identical with or similar to the designated goods of the earlier application, and on the other hand, the same or similar designated goods shall be determined in consideration of their quality, use, shape, transaction circumstances, etc. in accordance with the transaction norms. Thus, it cannot be determined as goods of the same kind or similar kind in the classification of goods in the attached Table of the Enforcement Rule of the Trademark Act. In this case, in light of the quality, use, shape, transaction circumstances, etc. of each of the designated goods of the earlier application trademark and the gaseous coup type transportation machinery, which is the designated goods of the cited trademark, shall not be deemed to be goods of the same kind

Article 9(1)7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990)

[Plaintiff-Appellee] Plaintiff 1 and 10 others (Law Firm Gong1, 1984, 369) (Law No. 355, Feb. 10, 1987)

Patent Attorney Park Jae-ki, Counsel for the plaintiff-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 976 dated October 28, 1990

The case shall be remanded to the Korean Intellectual Property Office by destroying the original trial decision.

We examine the grounds of appeal.

According to the reasoning of the original decision, the court below maintained the first decision that rejected the application of this case as it falls under Article 9 (1) 7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990), since the term "mark-car", which is the designated goods of the applied trademark of this case, and the designated goods of the cited trademark, are similar goods to the same transportation machinery and appliances, and Article 10 (1) [Attachment 1] of the Enforcement Rule of the Trademark Act is classified into the same goods group and treated as similar goods. Thus, the application of this case cannot be registered as it falls under the category of Article 9 (1) 7 of the former Trademark Act (amended by Act No. 4210 of Jan. 13, 1990).

However, according to Article 9 (1) 7 of the former Trademark Act, trademarks identical or similar to or similar to the registered trademark of another person by an earlier application which are used for goods identical or similar to the designated goods of the registered trademark cannot be registered. Thus, trademarks identical or similar to or similar to the registered trademark by an earlier application do not constitute those used for goods identical or similar to the designated goods of the registered trademark. Meanwhile, the same or similarity of designated goods must be determined in accordance with transaction norms considering their quality, use, shape, transaction circumstances, etc. Therefore, it cannot be concluded that each of the designated goods belongs to the same or similar goods in the same category in the attached Table of the Enforcement Rule of the Trademark Act (see Supreme Court Decision 82Hu35 delivered on January 24, 1984; Supreme Court Decision 85Hu113 delivered on February 10, 1987). Since each of the designated goods in this case is identical or similar to the registered goods in accordance with Article 9 (1) 7 of the former Trademark Act, each of the above applied for the same kind of goods cannot be seen as the designated goods in light of the record.

Therefore, the original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Chang-chul (Presiding Justice)