2003 Heo 5552 Trademark refusal
[Legal]
A composite mark may be identified by separable elements where that is natural in trade. A shared pronunciation or concept can support similarity. Goods are assessed by their characteristics, uses and trade circumstances to determine whether consumers may assume a common source.
Cited mark 1 | Cited mark 2 | Applied-for mark | |
Mark |  |  |  |
Designated Goods | Former Class 11 under Article 6, Appendix 1 of the Enforcement Rules of the Trademark Act, before amendment by Ordinance No. 83 of February 23, 1998: baby bottles, teats, teethers, medicine dispensers, weaning utensils, cotton swabs, thermometers, abdominal binders, infrared therapy lamps and sterilization equipment. | Class 10 under Annex 1 to Article 6 of the former Trademark Act Enforcement Rules, before amendment by Ministry of Commerce, Industry and Energy Ordinance No. 146 of 24 December 2001: hearing aids for the hard of hearing, ear plugs, ear moulds, hooks, wax guards, vents, cords, cases, screwdrivers and brushes for hearing aids. | Class 10 under the former Trademark Act Enforcement Rules before the December 24, 2001 amendment: medical devices for breast enlargement |
[Comparison]
1. Whether the sign is similar
1) Appearance
This case applied-for trademark is a character trademark consisting of the English alphabet ‘BRAVA’, and the cited trademark 1 is a combined trademark consisting of the figure portion on the left and the upper and lower parts of the English alphabet ‘RIOBRAVO’, and the cited trademark 2 is a character trademark composed of the English alphabet ‘BRAVO’, and its overall appearance is different.
2) Pronunciation and concept
BRAVA expresses applause or praise addressed to a woman and would be pronounced “Beuraba” in Korean.
The RIOBRAVO wording in cited mark 1 can be separated into RIO and BRAVO. BRAVO conveys applause and is close in pronunciation and meaning to BRAVA. Cited mark 2 consists of BRAVO and shares the same similarity.
The marks differed visually but were similar in pronunciation and concept.
2. Designated Goods.
The application's goods were medical breast-enlargement devices. Their particular purpose, users and distribution channels distinguished them from the baby-care, general medical and hearing-aid goods in the cited registrations.
By contrast, cited mark 1 covers feeding bottles, nipples, weaning utensils, teethers, dosing devices, cotton swabs, thermometers, abdominal supports, infrared treatment devices and sterilizing apparatus. These are baby-care or home and hospital medical products, generally manufactured by baby-product or medical-device companies and sold to consumers or hospitals through those specialist outlets. Cited mark 2 covers hearing aids and directly related products, generally made by medical-device manufacturers and sold through medical-device outlets to consumers with hearing impairments.
The goods differed in characteristics, purpose, manufacturers, sales channels and consumers and were not considered similar.
[Decisions]
Although the marks were similar, their designated goods were neither identical nor similar.
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