[1] Criteria for determining similarity of trademarks

[2] In a case where the registered trademark " "," which is composed of cosmetics, etc. as designated goods, is similar to the prior registered service mark " "," the case holding that even if the concept of both marks is identical or similar, even if they are used for similar goods or services, they can clearly avoid misconception and confusion about the origin of goods, and thus, it is difficult to view that the registered trademark and prior registered service mark are similar to each other, on the grounds that even if they are used for similar goods or services, they can clearly avoid misconception and confusion about the origin of goods

[3] Standard for determining whether there is a concern to mislead or confuse the source of goods (=general consumers or traders in Korea with ordinary attention)

[1] Article 34(1)7 of the Trademark Act / [2] Article 34(1)7 of the Trademark Act / [3] Article 34(1)7 of the Trademark Act

[1] Supreme Court Decision 2001Hu3415 decided Nov. 26, 2002 (Gong2003Sang, 260) / [3] Supreme Court Decision 98Hu2627 decided Apr. 11, 200 (Gong2000Sang, 1197) Supreme Court Decision 2006Hu954 decided Sep. 8, 2006

(Law Firm Sung, Attorney Kim Jung-soo, Counsel for the defendant-appellant)

Defendant

Patent Court Decision 2018Heo247 decided May 31, 2019

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Judgment on ground of appeal No. 1

The similarity of trademarks shall be determined by whether the external appearance, name, and concept of a trademark is likely to cause mistake or confusion as to the origin of goods by observing the overall, objective, and separation from the standpoint of ordinary consumers or traders. Even if there are different parts in the external appearance, name, and concept, if it is easy for ordinary consumers or traders to mislead or confuse as to the origin of goods because one is similar, it shall be deemed a similar trademark. However, even if one is similar, if a trademark as a whole can avoid mistake or confusion as to the origin clearly based on the direct perception that ordinary consumers or traders feel with respect to the trademark, it shall not be deemed similar (see Supreme Court Decision 2001Hu3415, Nov. 26, 2002, etc.).

Examining the above legal principles in light of the records, prior-registered service marks (registration number 1 omitted), composed of the instant registered trademark (registration number 1 omitted), designated goods: cosmetics, etc.) and “cosmetic retail business, etc.” (registration number 2 omitted), are identical and similar in terms of the meaning of “natural friendship”. However, the instant registered trademark is referred to as “Neman Flad,” and prior-registered service marks as “natural friendly,” and there are differences in the appearance in terms of name, and the existence of the figure portion and the difference between English and Korean. Considering the importance of the trademark’s appearance and name in the transaction of designated goods, even if the concept is similar, the two marks are clearly distinguishable from their appearance, and thus, even if similar goods and services are used together, it is difficult to see that general consumers or traders are clearly mistaken and confused about the origin of goods. Therefore, even if they are used, the instant registered service marks are similar to the instant registered trademark.

In the same purport, the lower court did not err by misapprehending the legal doctrine on determining similarity of trademarks, as otherwise in the grounds of appeal.

2. Judgment on ground of appeal No. 2

Whether a trademark is likely to cause mistake or confusion as to the source of goods should be determined on the basis of ordinary consumers or traders in Korea with common attention (see, e.g., Supreme Court Decisions 98Hu2627, Apr. 11, 200; 2006Hu954, Sept. 8, 2006).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on the subject of mistake and confusion in the source of goods.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee (Presiding Justice)