Let's continue the discussion on “Introduction to Intellectual Property and Understanding Intellectual Property”. Among them, today we will learn about “the same and similarity of trademarks and products”.
Starbucks discovered that El Freya Coffee, a Korean company, was using a trademark with colors, shapes and letters similar to the Starbucks logo, and filed a trademark registration invalidation lawsuit. In Korea, the concept of “similarity” is used to judge the abstract concept of “confusion” because rights are judged based only on the possibility of confusion rather than the fact that the source of the product actually caused confusion. The similarity of a trademark is an important concept that serves as a criterion for determining whether or not infringement of a trademark has occurred when applying for a trademark or in a trademark infringement lawsuit.
1. A similar trademark
Among various intellectual property rights, a trademark has relatively strong visual elements and is easy to imitate. For this reason, the Trademark Act extends the scope of protection of trademark rights to areas of similarity. In other words, if the same or similar trademark is used for the same or similar product, it is judged that there is a possibility of confusion by a third party. However, even if it is a similar product, it cannot be said to be a similar trademark if it is possible to completely avoid confusion of the source. Conversely, even though the different parts are clear, if the source may be confused, it can be set as a similar trademark.
2. The three factors for judging trademark similarity
1) Appearance similarity: When two trademarks are confused because the composition of characters, figures, symbols, three-dimensional shapes, or colors is similar
2) Similarity of names: The names of two trademarks are similar so that it becomes confusing to identify the source
3) Perceptual similarity: when two trademarks or products are perceptually similar causing difficulties in identifyinig the source
In the case of a trademark in which two or more figures and characters are combined, two or more partial titles or ideas in one trademark should be considered unless it is logically impossible to recognize each constituent part separately. Judging that it is conceivable, similar judgments can be made for partial titles or ideas.
3. Identicality and Similarity of Products
It means that two products that are in contrast are similar enough to cause confusion within their trading market. According to the case law of the Supreme Court, it is judged when the contrasting products use the same or similar trademarks to cause confusion, but this judgment is based on the characteristics of the product itself such as shape, quality, use, sales sector, production sector, range of consumers, etc. It was defined that judgment should be made according to the conventional myth of the trading market.
Today, we learned about “the same and similarity of trademarks and products”. Next, we will discuss “trademark rights and protection of trademark owners”.
*I am a student learning IP, not an IP expert. Translation is also a translator and my short English skills. I hope it will be helpful for those who do not have the relevant knowledge or who want to learn about IP.
*The above is what I learned from a book compiled by the Korean Intellectual Property Office and Korea Invention Promotion Association (published by Pakmungak) entitled “Introduction to Intellectual Property, Understanding Intellectual Property”.
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