The meaning of so-called "goods of the same kind" under Article 5 (1) 11 of the Trademark Act

A. Article 53 of the former Enforcement Rule of the Trademark Act (Presidential Decree No. 284 of March 8, 500) does not determine the same kind of product.

B. The goods of the same kind under Article 5 (1) 11 of the former Trademark Act (Act No. 71 of Nov. 28, 49.11.2) refer to the goods that the applicant for trademark registration designates that the trademark should be used among the goods and registered.

Article 5 (1) 11 of the Trademark Act and Article 53 of the Enforcement Rule of the Trademark Act

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Director of the Patent Bureau

Patent Country

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial.

Appellant’s First Ground of Appeal

The original adjudication decision may not be established for the reason that the argument of the claimant for the appeal is not possible, and the trademark filed by the claimant for the appeal is identical with the registered trademark No. 1,739 and its name is similar, and the shape is used by the mother and child, and even if there is a minor difference in the use that it is used by the mother and child, both goods used by the human body and goods are closely related, and in the classification of Article 53 of the Enforcement Rule of the Trademark Act, both goods of the same kind covered by the same kind are displayed and sold at the same quantity store or store in the 45th category, and in the classification of Article 53 of the Trademark Act, they are all the same textile goods, and thus, they are identical goods within the mother and child. Accordingly, the trademark is also considered to be a kind of goods within the same kind of goods as the trademark is extremely similar to that of the registered trademark No. 1,739, and the urban appearance is extremely similar to that of the registrar of the trademark.

However, Article 53 of the Enforcement Rule of the Trademark Act does not stipulate the same kind of product (see Supreme Court Decision 1959Da117, Nov. 17, 1960). Article 15 of the Trademark Act provides that a registered trademark interest holder shall have the right to exclusively use a trademark for the goods or business designated in accordance with the classification table separately, and Article 19 of the same Act provides that a registered trademark right holder may apply for correction registration of addition of goods or similar business within the same classification table at any time during the effective period of registration or renewal of registration, and Article 53 of the Enforcement Rule of the Trademark Act provides that an applicant must designate a trademark by the kind of kind of product as provided in the above Article 5 (1) 11 of the Trademark Act, even if the goods of the same kind belong to the same kind as those of the above Enforcement Rule, and that an applicant for trademark registration violates the above decision by designating a trademark among the goods and remands the same product to the designated goods of the same kind as the registered trademark upon the assent of the Supreme Court's decision on the grounds for appeal.

Judge Lee Young-chul(Presiding Judge) of the Supreme Court