What is Article 4, Paragraph 1, Item 11 of the Trademark Law?
Article 4, Paragraph 1, Item 11 of the Trademark Law stipulates that a trademark that is the same as or similar to the registered trademark of another person in the prior application and has the same or similar designated goods or designated services will not be registered.
The reasons for refusal of the registered trademark (Trademark Law, Article 4, Paragraph 1, Item 11) are the most frequently notified refusals, along with the reasons for refusal of the descriptive trademark (Trademark Law, Article 3, Paragraph 1, Item 3). The reason
The trademark examination period varies considerably depending on the field and whether it is a fast track examination or an accelerated examination, but a trademark registration application on the previous filing date can be registered as a trademark.
The trademark examination period varies considerably depending on (1) normal examination, (2) fast track examination, and (3) accelerated examination.
① Regular examination start period: 8-14 months
(2) Fast track examination start period: Approximately 6 months
* Applications that limit designated products / services to similar products / services examination standards or international classification tables (nice classification) for products / services
③ Examination start period for accelerated examination: Approximately 1.7 months
If the earlier application is a normal examination, the later application is an accelerated examination, and even if the examination of the later application is performed before the examination of the earlier application, the notification of Article 15-3 of the Trademark Law will be given to the later application. However, the subsequent application will not be registered prior to the earlier application.
About trademark similarity
If the relationship between the applied trademark and the prior application trademark is (1) the trademark is the same or similar, and (2) the designated goods / designated services are the same or similar, the applied trademark will not be registered.
(1) Even if the trademarks are the same or similar, if the designated goods / designated services are dissimilar, or (2) if the designated goods / designated services are the same or similar, but the trademarks are dissimilar, they will be registered.
(1) Similarity of trademarks
As a general rule, if any one of the appearance, the name, and the idea is similar, the trademark is considered to be similar.
The appearance is the outer shape that the consumer who comes into contact with the trademark visually recognizes.
A title is a sound that a consumer who comes into contact with a trademark naturally recognizes in a transaction.
An idea is a meaning or meaning that a consumer who comes into contact with a trademark naturally recalls in a transaction.
Judgment of similarity of names
Judgment of similarity of ideas
(Example) (Trademark examination standard)
(1) Even if the meaning of a foreign language that constitutes a trademark is listed in a dictionary, etc., if it is judged that the consumer who comes into contact with the trademark cannot immediately understand or recognize the meaning, the trademark will be used. No idea of meaning arises.
(2) When a trademark has color, the idea may be generated from that part as well (for example, a "white" horse or a "red" flag figure).
Example of cases where the names are similar (* quoted from trademark examination standards)
(1) When both are called with the same number of sounds and one different sound has a common vowel
② Whether the consonants of different sounds are common or the consonants are similar
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If characters that do not have discriminating power are included in the composition of the trademark, the similarity of the trademark will be judged except for the characters that do not have discriminating power.
(2) Similarity of designated goods and designated services
(* Quoted from trademark examination standards)
(i) About the similarity of products
For example, the following criteria are comprehensively considered when determining the similarity of products.
① Whether the production departments match
② Whether the sales departments match
③ Whether the raw materials and quality match
④ Whether the usage matches
⑤ Whether the range of consumers matches
⑥ Whether there is a relationship between the finished product and the parts
(ii) About the similarity of services
For example, the following criteria are comprehensively considered when determining the similarity of services.
① Whether the means, purpose or place of provision match
② Whether the items related to the offer match
③ Whether the range of consumers matches
④ Whether the industry is the same
⑤ Whether the laws that regulate the business and businesses related to the service are the same
⑥ Whether it is provided by the same business
(iii) Similarity between products and services
For example, the following criteria are comprehensively considered when determining the similarity between goods and services.
(1) It is common for the same company to manufacture and sell products and provide services, and whether he is there or not.
② Whether the purpose of the product and the service match
③ Whether the place where the product is sold and the place where the service is provided match
④ Whether the range of consumers matches
What to do if you receive a reason for refusal of prior application registration (Trademark Law, Article 4, Paragraph 1, Item 11)
If the reason for refusal of the prior application registration (Trademark Law, Article 4, Paragraph 1, Item 11) is received, the designated goods / designated services that are the same as or similar to the designated goods / designated services of the prior application registered trademark will be deleted. You can eliminate the reason for refusal by making amendments.
In other words, the correction is made to delete the designated goods / designated services that are the same as the similar group code of the designated goods / designated services of the registered trademark of the prior applicant.
If the applicant makes an argument in a written argument that the earlier registered trademark and the present application are not similar, the reason for refusal will be resolved if this argument is accepted.
