|Subject｜||[Trademark] Patent Court Decision, 2017Heo9196, decided August 18, 2017|
Patent Court Decision, 2017Heo9196, decided August 18, 2017 (Gliatimin Case)
Even if actual drugs consumers are general consumers, considering medical doctors, pharmacists, etc. are involved in actual sales and trade relations, when the registered trademark of this case and the previously registered trademarks are used together for identical and similar products, the similarity thereof should be determined not only by general consumers who are the final consumers of drugs, but also by medical doctors, pharmacists, etc., and thus the recognition of medical doctors, pharmacists, etc. should be considered together with that of ordinary consumers or traders.
For the following reasons, the "GLIA" part that is a part of the registered trademark of this case and the previously registered trademarks cannot be seen to have no or weak distinctiveness.
① In general, the English word "GLIA", or its Korean transliteration "글리아", means "neuroglia" or "glial cells" having important interactions between neurons as non-neuronal cells other than the vasculature in the central and peripheral nervous system. ② However, it seems that not only general consumers, but also even experts such as medical doctors, pharmacists, etc., do not easily recognize that the "GLIA" part signifies "neuroglia" or "glial cells". ③ Furthermore, even if "GLIA" signifies neuroglia, the relationship between glial cells themselves and brain dysfunction, such as memory decay syndrome and degenerative cerebral syndrome, does not seem to be widely known, and there are no materials to admit the relationship. Thus, it is difficult to construe that the "GLIA" part of the registered trademark of this case and the previously registered trademarks directly indicates the efficacy and use of a therapeutic agent for brain diseases among the designated goods.
Furthermore, both marks are composed of 9 letters of the alphabet, and when read in Korean, both marks have the same number of five syllables identically. Also, the three syllables that are pronounced relatively strongly in light of the emphasis position of the Korean language and have the most prominent influence on the auditory sense are the same as "글리아". Furthermore, the initial sound of the fourth syllable of both marks are aspirated sounds pronounced by strongly bursting air out in a "ㅌ(t)" sound, and the middle sound "ㅣ(i)" and the final sound "ㄴ(n)" of the fifth syllable are the same. Accordingly, in spite of the difference in the middle sound of the fourth syllable and the initial sound of the fifth syllable, as both marks will be heard to be similar as a whole, the name is determined to be similar.
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