关于知识产权 知识产权培训 树立尊重知识产权的风尚 知识产权外联 部门知识产权 知识产权和热点议题 特定领域知识产权 专利和技术信息 商标信息 工业品外观设计信息 地理标志信息 植物品种信息(UPOV) 知识产权法律、条约和判决 知识产权资源 知识产权报告 专利保护 商标保护 工业品外观设计保护 地理标志保护 植物品种保护(UPOV) 知识产权争议解决 知识产权局业务解决方案 知识产权服务缴费 谈判与决策 发展合作 创新支持 公私伙伴关系 人工智能工具和服务 组织简介 与产权组织合作 问责制 专利 商标 工业品外观设计 地理标志 版权 商业秘密 WIPO学院 讲习班和研讨会 知识产权执法 WIPO ALERT 宣传 世界知识产权日 WIPO杂志 案例研究和成功故事 知识产权新闻 产权组织奖 企业 高校 土著人民 司法机构 遗传资源、传统知识和传统文化表现形式 经济学 金融 无形资产 性别平等 全球卫生 气候变化 竞争政策 可持续发展目标 前沿技术 移动应用 体育 旅游 PATENTSCOPE 专利分析 国际专利分类 ARDI - 研究促进创新 ASPI - 专业化专利信息 全球品牌数据库 马德里监视器 Article 6ter Express数据库 尼斯分类 维也纳分类 全球外观设计数据库 国际外观设计公报 Hague Express数据库 洛迦诺分类 Lisbon Express数据库 全球品牌数据库地理标志信息 PLUTO植物品种数据库 GENIE数据库 产权组织管理的条约 WIPO Lex - 知识产权法律、条约和判决 产权组织标准 知识产权统计 WIPO Pearl(术语) 产权组织出版物 国家知识产权概况 产权组织知识中心 产权组织技术趋势 全球创新指数 世界知识产权报告 PCT - 国际专利体系 ePCT 布达佩斯 - 国际微生物保藏体系 马德里 - 国际商标体系 eMadrid 第六条之三(徽章、旗帜、国徽) 海牙 - 国际外观设计体系 eHague 里斯本 - 国际地理标志体系 eLisbon UPOV PRISMA UPOV e-PVP Administration UPOV e-PVP DUS Exchange 调解 仲裁 专家裁决 域名争议 检索和审查集中式接入(CASE) 数字查询服务(DAS) WIPO Pay 产权组织往来账户 产权组织各大会 常设委员会 会议日历 WIPO Webcast 产权组织正式文件 发展议程 技术援助 知识产权培训机构 COVID-19支持 国家知识产权战略 政策和立法咨询 合作枢纽 技术与创新支持中心(TISC) 技术转移 发明人援助计划(IAP) WIPO GREEN 产权组织的PAT-INFORMED 无障碍图书联合会 产权组织服务创作者 WIPO Translate 语音转文字 分类助手 成员国 观察员 总干事 部门活动 驻外办事处 职位空缺 采购 成果和预算 财务报告 监督
Arabic English Spanish French Russian Chinese
法律 条约 判决 按管辖区浏览

日本

JP066-j

返回

1991 (O) 1805, Shumin No. 165 at 407

Date of Judgment: September 22, 1992

 

Issuing Authority: Supreme Court

 

Level of the Issuing Authority: Final Instance

 

Type of Procedure: Judicial(Civin( �b>

 

Subject Matter: Trademarks

 

Main text of the judgment (decision):

 

1. The judgment in prior instance shall be reversed.

 

2. The present case shall be remanded to the Tokyo High Court.

 

Reasons:

 

Regarding the reasons for the final appeal according to Appellant's attorneys, ●●●● and ●●●●.

 

1. The fact situation having been confirmed in the court of prior instance is as follows.

(1) Appellant has the trademark right of Registration No. 1856899 (hereinafter referred to as "Trademark Right", and the registered trademark as "Trademark"), for which an application for trademark registration was filed on December 8, 1983, and registration was established on April 23, 1986, with the designated goods of "Soaps and detergents; Dentifrices; Cosmetics and toiletries; Perfume and flavor materials" in Class 4. The Trademark consists of the kanji characters, "大森林", written horizontally in block style.

(2) Appellee, who engages in the business of manufacture and sale of cosmetics and toiletries, sells hair growth tonic and shampoo for scalp care (hereinafter referred to as "Appellee's Products") by affixing thereto the marks, which are indicated in List of Marks attached to the judgment in the first instance (hereinafter referred to as "Appellee's Mark"), and also uses Appellee's Mark for advertisement. Appellee's Mark consists of the kanji characters, "木林森", written vertically or horizontally in semi-cursive style.

Under the above fact situation, the court of prior instance found and determined that Appellee's Mark is not similar to Trademark in any of appearance, pronunciation, and concept, even when these factors are considered comprehensively. As such, the court of prior instance dismissed the appeal made by Appellant against the judgment in the first instance, which dismissed the principal action made by Appellant seeking an injunction of the manufacture and sale of Appellee's Products and the like on the premise that Appellee's Mark is similar to Trademark.

 

2. However, the above judgment of the court of prior instance cannot be approved, for the following reasons.

(1) The similarity between trademarks should be judged holistically by comprehensively taking into consideration factors such as the impression, memory, and association which are given to traders from the appearance, concept, and pronunciation and the like of the trademarks when they are used on identical or similar goods, and furthermore, as long as it is possible to clarify the actual circumstances in which goods are traded, the determination should be made based on the specific circumstances of trading (refer to Supreme Court Judgment 1964 (Gyo-Tsu) 110; the judgment rendered on February 27, 1968 by Third Petty Bench; Minshu Vol. 22, No. 2, page 399), and sometimes the trademarks, which are not similar in regards to the individual factors of appearance, concept, and pronunciation under close observation, may actually be similar depending on the specific circumstances of trading. Accordingly, attention should be paid to the fact that the applicability of similarity, when considered comprehensively in terms of appearance, concept, and pronunciation, is subject to change depending on the specific circumstances of trading.

(2) When the above is considered for the present case, Trademark and Appellee's Mark are identical in two of the characters used; namely, "" and " ". Considering that the characters, "" and "", which are not identical, can be confusingly similar depending on how the characters are written, and that Appellee's Mark is a coined word that has no meaning, and that , given the characters constituting the trademarks, the two trademarks both evoke a tree that is suggestive of producing the effect of hair growth, it is clear that the two trademarks are, upon holistic observation for comparison, confusingly related in terms of appearance and concept at least, so that, depending on the circumstances in which the goods are traded, the likelihood of customers mistaking one for the other cannot be denied, and resultingly, it must be said that there is room for acknowledging that the two trademarks are similar.

(3) Upon explaining as to whether or not there is similarity in terms of concept, the court of prior instance stated that the customers of products such as hair growth tonic for scalp care affixed with Trademark and Appellee's Mark are men who strongly desire hair growth, and made the presumption that such consumers are deeply interested in the marks with which such goods are affixed and pay close attention upon product selection. However, it is clear from the empirical rule that it cannot be concluded that all customers are necessarily as described above. In addition, since Appellant makes the assertion that non-exclusive rights are granted for Trademark Right and that holders of non-exclusive rights affix Trademark to hair growth tonic for scalp care and sell the goods through affiliated companies, the circumstances in which goods are traded and which may possibly come out of this asserted fact must be taken into account upon determining the similarity between Trademark and Appellee's Mark. Accordingly, it must be said that the presumed fact alone, which was made by the court of prior instance as described above, is not sufficient to constitute grounds for determining that the two trademarks are not similar. The court of prior instance merely concluded, in addition to the above, that it cannot be acknowledged that the two trademarks are similar in concept even when consideration is given to the circumstances of trading, as can be conceived from the designated goods for which Trademark is used, as well as the circumstances of trading that is currently conducted for Appellee's Products by using Appellee's Mark. As such, the court of prior instance found and determined the issue of whether or not Trademark and Appellee's Mark are similar without making specific findings about circumstances of trading such as whether Appellee's Products are sold via door-to-door sales or via over-the-counter sales, and in the case of the latter, how the goods are exhibited. Accordingly, it must be said that the judgment in prior instance has illegality of application of incorrect interpretation of law, or inadequacy of reason, which would clearly have influence on the judgment.

 

3. Therefore, the gist of the argument which makes the above point is reasonable, reversal of the judgment in prior instance cannot be avoided, the present case shall be remanded to the court of prior instance for further examination, and the judgment of this court is rendered unanimously by all judges, as per the main text, by application of Articles 407, paragraph (1) of the Code of Civil Procedure.

 

(This translation is provisional and subject to revision.)