judgedate:
December 5, 1963
caseid:1962 (O) 953
casename:
A case of seeking rescission of the JPO decisioncasetitle:
Judgment regarding the method for determining the similarity between trademarks inthe case where a single trademark produces two or more pronunciations or concepts.
summary_judge:
1.

In the case where a single trademark produces two or more pronunciations orconcepts, even if it cannot be said that one of the pronunciations or concepts is
identical or similar to the pronunciation or concept of another person's trademark,it is reasonable to interpret that the two trademarks are still similar if any otherpronunciation or concept of the trademark is similar to that of another person'strademark.

2.

Given the fact situation found by the court, a trademark which has the designatedgoods of "Soap" and which consists of the combination of a figure of a lyre and thecharacters, "宝塚" [read as "takarazuka" in Japanese], produces the pronunciationand concept of simply a "takarazuka" mark in addition to the pronunciation andconcept of a "lyre/lyra takarazuka" mark, so that it should be acknowledged that theabove trademark is similar to the trademark, "宝塚", which also has the designatedgoods of "Soap".

court second:Tokyo High Court, Judgment of April 24, 1962
references:
Article 2, paragraph (1), item (ix) of the former Trademark Act (Act No. 99 of 1921)i

Main text
The final appeal of the present case shall be dismissed.
Appellant shall bear the cost of the final appeal.
Reasons
Regarding Reason 1 for the final appeal according to Appellant's attorney, ●●●●.
The gist of Appellant's argument is that the judgment in prior instance, which heldthat Trademark is similar to Cited Trademark in pronunciation and concept byextracting only the character part, "宝塚" [read as "takarazuka" in Japanese], from theconstituent parts of Trademark for comparison with Cited Trademark, " 宝塚", isagainst the principle and the experimental rule for determining similarity between
trademarks.
Since a trademark is created so as to be identifiable from another person's
trademark based on the entirety of the constituent parts, it is not permissible, without
due cause, to extract part of the constituent parts of a trademark to compare only suchpart with another person's trademark to determine the similarity between trademarks
per se, as per the asserted opinion.

However, in actual transactions where simplicity

and promptness are valued, with regard to a trademark which cannot be acknowledged
as having each of the constituent parts joined together in such a way as to suggest that
it would be unnatural in transactions to observe the constituent parts separately fromone another, it is not always the case that a pronunciation or concept is produced fromthe name of the entirety of the constituent parts, and it is often the case that apronunciation or concept is produced from only part of the trademark, in an
abbreviated manner, and as a result, two or more pronunciations or concepts areproduced from a single trademark, as we already know from the empirical rule (referto the judgment rendered on June 23, 1961 by the Second Petty Bench, Minshu Vol.
15, No. 6, p. 1689).

Having said that, even if it cannot be said that a pronunciationor concept is identical or similar to the pronunciation or concept of another person'strademark, if another pronunciation or concept is similar to that of another person'strademark, it is reasonable to interpret that the two trademarks are still similar.
The above is considered in light of the present case as follows.

The Trademark

has the designated goods of "Soap" in Class 4, and consists of the combination of a
figure of a lyre, which is said to have been used in ancient Greece, and the characters," 宝 塚 ",

andfurthermore,thecharacters,"LYRATAKARAZUKA", are attached thereto.

" リ ラ タ カ ラ ズ カ "andAs such, it is clear that thepronunciation and concept of a "lyre/lyra takarazuka" mark is produced from this1

trademark, and it is sufficient to presume that this is also where the int ention ofAppellant Company in creating Trademark lay.

However, according to the facts

having been confirmed in the judgment in prior instance, the fact that the above figureis that of a "lyre" which was used in ancient Greece is not widely known among
ordinary people who are involved in transactions of "Soap", which is the designatedgoods for Trademark, whereas "宝塚" has a clear meaning in itself and is somethingwith which ordinary people are familiar, and furthermore, the above characters, "宝塚", are shown almost at the center of Trademark and written in an ordinary print in amanner that is very easy to read, and is independent, and has a constitution that
attracts the attention of those who see the trademark.

Accordingly, the judgment inprior instance, which was rendered under such fact situation to the effect that since
the above figure of a lyre and the characters, "宝塚", are not joined together in such away as to suggest that it would be unnatural in transactions to observe the constituent
parts separately from one another, it is acknowledged that Trademark often produces
the pronunciation or concept of simply a "takarazuka" mark in addition to thepronunciation or concept of a "lyre/lyra takarazuka" mark, and that Trademark istherefore similar in pronunciation and concept to Cited Trademark, "宝塚", whichequally has the designated goods of "Soap" in Class 4, is reasonable, and there is noillegality with the asserted opinion.

The legal precedents having been cited in theasserted opinion are not appropriate for the present case, which concerns a different
issue.
Accordingly, the gist of Appellant's argument is groundless and cannot beaccepted.
Regarding Reason 2 for the final appeal.
In sum, the gist of Appellant's argument is that the aforementioned findings in thejudgment in prior instance ignored the judicial admissions and carried out fact finding
which is contrary to the judicial admissions, thereby violating the empirical rule andlegal precedents, and thus being illegal based on incorrect interpretation of Article 2,paragraph (1), item (ix) of the former Trademark Act (Act No. 99 of 1921).
However, as records show, Appellee clearly denies that it was known to the publicthat the figure of a lyre in Trademark has been used over many years as an emblem of
Takarazuka Revue Company and that Takarazuka Revue Company has been involvedin the management of Appellant's company.

As such, although the parties are not in

dispute over the fact that the figure of a lyre is well known to the public as a symbolof music and that it is something with which people are familiar, it cannot be said that2the finding in the judgment in prior instance to the effect that "it cannot be
acknowledged that the figure of a lyre and "宝塚" inevitably came to be joined
together as a concept", as per the asserted opinion, is a result of having ignored
judicial admissions.

Also, given that the documentary evidence that supports theasserted opinion constitutes certified copies of the trial decisions and judgme nts
which were made with respect to the applications for registration of trademarks otherthan Trademark, the fact that the content of the documentary evidence was not used asmaterials

fordetermining

onthesimilarity

betweenTrademarkand

theaforementioned Cited Trademark in the judgment in prior instance cannot be
considered as contravening the legal precedents cited in the asserted opinion.

As forother points in the gist of Appellant's argument, they merely refer to the illegality of
the asserted opinion by building on a unique perspective that is different from thejudgment in prior instance.
Accordingly, the judgment in prior instance has no illegality in regards to theasserted opinion, and the gist of Appellant's argument is entirely groundles s, so thatthe reversal of the judgment in prior instance is unavoidable.
Therefore, the judgment of this court is rendered unanimously by all judges, as per
the main text, by application of Articles 401, 95, and 89 of the Code of Civil
Procedure.
Supreme Court, First Petty Bench
Presiding judge:

OSABE Kingo

Judge:

IRIE Toshio

Judge:SHIMOIZAKA Masuo

Judge:SAITO Kitaro

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