Newsletter
PRECEDENCE OF PRINCIPLES FOR EXAMINING TRADEMARK SIMILARITY
According to past court rulings, the principles for examining whether two trademarks are similar include "observation of the mark as a whole," and "judgment on the basis of major constituent elements." However, there has been disagree-ment as to the relationship between these two principles, and the order of precedence in which they should be applied. In a 2004 judgment, the Supreme Administrative Court stated that the two principles are mutually independent. Which of them to apply should be determined according to the circumstances of the individual case.
The same judgment also elucidated the distinc-tion between the principle that each trademark application should be examined individually on its merits, and sets no precedent for other cases, and the principle of equality set out in Article 6 of the Administrative Procedures Act (APA), which prohibits unequal treatment in actions by administrative agencies, except for legitimate reasons. The Court stated that the corollary of the above principle of equality is that when le-gitimate grounds do exist, different treatment is indeed permitted. Compared with the principle of individual examination of trademarks, the principle of equality in administrative law re-quires more rigorous scrutiny, and should not apply unless there is absolutely firm evidence that two trademarks are highly similar.