Date of
Judgment: October 13, 1981
Issuing
Authority: Supreme
Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial
(Civil)
Subject
Matter: Trademarks
Main
text of the judgment (decision):
1. The final appeal shall be
dismissed.
2. Appellant shall bear the
cost of the final appeal.
Reasons:
Regarding
Reason No. 1.1 for the final appeal according to Appellants' attorney,
●●●●.
It is evident, in light of the texts of
the judgment of the first instance and the judgment in prior instance, that the
part, which was pointed out in the asserted opinion and with respect to which
the ruling was made in the judgment in prior instance to the effect that the
parties are not in dispute over said part, is the part which was determined, as
per the indication of facts in the judgment of the first instance, as cited in
the judgment in prior instance, to be the part over which the parties are not
in dispute. Furthermore, it is evident from records that Third Preparatory
Brief submitted by Appellants, as pointed out in the asserted opinion, was not
stated on the date for oral arguments during the trial of the prior instance.
Accordingly, there is no illegality with the judgment in prior instance as per
the asserted opinion. The gist of the argument cannot be accepted.
Regarding
Reason No. 1.3 for the final appeal.
In light of the background to how the
Mark, which is used by Appellee, came to be widely recognized in Japan and came
to be acknowledged as a well-known mark with significant distinctiveness, and
the background to how the Mark, which is used by Appellants, came to be used,
and the facts relating to the chronological order for the use of the two marks,
as per the findings of the court of prior instance, and in light of the
explanation provided in the judgment in prior instance based on these findings,
it can be considered that the assertion made by Appellants was rejected in the
trial of the prior instance, so that there is no illegality with the judgment
in prior instance as per the asserted opinion. The gist of the argument cannot
be accepted.
Regarding
Reason No. 2.1 for the final appeal according to Appellants' attorney, ●●●●,
Reason No. 5 for the final appeal according to Appellants' attorneys, ●●●●, ●●●●,
and ●●●●, and Reason No. 4 for the final appeal according to Appellants'
attorneys, ●●●●, ●●●●, ●●●●, ●●●●, and ●●●●.
In the case where the confusion of goods,
as stipulated in Article 1, paragraph (1), item (i)
of the Unfair Competition Prevention Act, is acknowledged as a fact, it should
be said that there is a risk of harming business interests, unless there are
special circumstances, and the judgment of the court of prior instance, whose
purport is the same as the above, can be approved as justifiable, and the
finding and judgment of the court of prior instance, in which it was
acknowledged that there are no such special circumstances in the present case,
can be approved as justifiable in light of the evidence listed in the judgment
in prior instance. The gist of the argument is merely one which, put plainly,
attacks the fact finding which belongs to the exclusive right of the court of
prior instance, or criticizes the judgment in prior instance from a unique
perspective, and cannot be accepted.
Regarding
Reason No. 6 for the final appeal according to Appellants' attorneys, ●●●●, ●●●●,
and ●●●●.
The substance of a trademark right is to
grant the exclusive use of the registered trademark for designated goods, and
the power to exclusively use marks that are similar to
the registered trademark for the designated goods is not included. A holder of
a trademark right is only allowed to demand against a person, who uses a
similar mark as described above, that the use of the mark be prohibited on the
grounds of trademark right infringement (refer to Article 25, Article 36, and
Article 37 of the Trademark Act). Accordingly, it should be interpreted that
the use by Appellants of the Mark, which is similar to
Registered Trademark, does not fall under the "act which is acknowledged
as exercising of a right pursuant to the Trademark Act" according to
Article 6 of the Unfair Competition Prevention Act. As such, there is no
illegality with the judgment in prior instance, whose purport is the same as
the above. The gist of the argument is merely one which, put plainly,
criticizes the judgment in prior instance from a unique perspective, and cannot
be accepted.
Other
reasons for the final appeal according to Appellants' attorney, ●●●●, other
reasons for the final appeal according to Appellants' attorneys, ●●●●, ●●●●,
and ●●●●, and other reasons for the final appeal
according to ●●●●, ●●●●, ●●●●, ●●●●, and ●●●●.
In light of the
evidence listed in the judgment in prior instance, the finding and judgment of
the court of prior instance pertaining to the points made in the asserted
opinion can be approved as justifiable, and there is no illegality in the
process, as per the asserted opinion. The gist of the argument is merely one
which, put plainly, attacks the determination of rejection or adoption of
evidence and the fact finding, which belong to the exclusive right of the court
of prior instance, or criticizes the judgment in prior instance based on
incorrect interpretation of the same, and cannot be accepted in either case.
Therefore,
the judgment of this court is rendered unanimously by all judges, as per the
main text, by application of Articles 401, 95, 89, and 93 of the Code of Civil
Procedure.
(This translation is provisional and subject to revision.)