Date of
Judgment:
March 11, 1997
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial(Civin( �b>
Subject
Matter:
Trademarks
Summary
of the judgment (decision):
1. The
name of an organized business group united as a whole by franchise agreements
(franchise chain) can be regarded as "one's name" referred to in
Article 26, paragraph (1), item (i) of the Trademark Act.
2. Where the term "小僧寿し"
(Kozozushi) is widely recognized among general consumers as an abbreviation of
the name of a famous franchise chain, each of the marks consisting of
characters used by the franchise chain, such as "小僧寿し" and
"KOZO ZUSHI," produces a pronunciation or gives rise to a concept
only in its entirety, and the part of "小僧" or "KOZO in these
marks does not produce any pronunciation or give rise to any concept that may
serve as an identifier of the source of goods, and therefore these marks are
not similar to a registered trademark "小僧."
3. Where marks consisting of figures (not
attached hereto) have been continuously used by a famous franchise chain
together with the chain's name or abbreviation, "小僧寿しチェーン" (Kozosushi Chain) or "小僧寿し"
(Kozozushi), although there is the possibility that these marks may produce a
pronunciation "ko-zo-u-zu-shi" or "ko-zo-u-su-shi," they
are not likely to cause confusion with a registered trademark "小僧" as
to the source of goods, and therefore these marks are not similar to the
registered trademark.
4. Against a claim for damages made by the
trademark right holder under Article 38, paragraph (2) of the Trademark Act,
the alleged infringer is allowed to avoid liability for damages by alleging as
a defense: and proving, the impossibility of the occurrence of damage on the
part of the trademark right holder.