“걸작 떡볶이” 상표의 거절결정에 대하여

A Case Study Regarding Trademark Appeal Board Case No. 2017WHON45, and Patent Court Case No. 2018HUR5198 on Similarity between “걸작 떡볶이” and ‘걸짝’ for Class 43

The following mark “걸작 떡볶이(stylized) & device” was rejected by the Korean Trademark Office over similarity to the following three senior trademarks: Both the present mark and the senior trademarks cover various restaurant services including snack bar services for class 43. The Appeal Board of the Trademark Office affirmed the examiner s rejection of the present mark. The Korean Patent Court also affirmed the Board s rejection of the present mark. ‘걸작’ means masterpiece, masterwork and the like, and ‘떡볶이’ means a Korean traditional snack which is prepared with white rice cake, red pepper sauce and other condiments. The snack is very popular throughout the country, especially in traditional market places. ‘걸작’ of the present mark is similarly sounded with ‘걸짝’ of the senior marks. However, as long as there exist two senior marks of ‘GiRLzzak’ and ‘GIRLZZAK’ and each letter of ‘걸짝’ has different color and style, the meaning and appearance are totally different each other. According to the two marks, ‘걸’ is a Korean transliteration of ‘girl’ and ‘짝’ means a couple. Further, what is important in this case is that the present mark cannot be used for other restaurant services except the rice cake based snack bar services. Neither the Trademark Office nor the Patent Court did discuss such issue. Both organizations determined the similarity of services based on the description of the applications. Even worse, the applicant did not restrict the services although the present mark is not proper for other restaurant services except the rice cake based snack bar services.