Korean ‘Red Pearl’ decision clarifies goods similarity between trademarks and variety denominations

On April 1 2026, the Intellectual Property High Court of Korea (the IP High Court) affirmed the Intellectual Property Trial and Appeal Board’s (IPTAB’s) decision to reject a trademark application, holding that the similarity between the trademark’s designated goods and protected crop varieties must be evaluated based on commercial criteria rather than botanical classifications. The ruling establishes a significant precedent by clarifying that the assessment of similarity between trademarked goods and protected crop varieties is not restricted to the genus or species level but instead is governed by long-established standards for goods similarity.

In March 2021, the plaintiff filed a trademark application for the mark ‘Red Pearl’, designating various citrus fruits in Class 31, including varieties of mandarin hybrids such as Redhyang, Hallabong, Cheonhyehyang, mandarins, oranges, greenhouse tangerines, and tangerines.

In August 2022, the examiner issued a rejection primarily under Article 34(1)(xvii) of the Trademark Act, which prohibits the registration of a trademark identical or similar to the name of a variety registered pursuant to Article 109 of the Plant Variety Protection Act (PVPA) where the trademark is used for goods identical or similar to that variety. The reasoning behind the refusal was that the mark was identical or similar to the pre-existing variety denomination ‘Red Pearl’ (registered for melons and strawberries), creating a likelihood of consumer confusion.

After the plaintiff’s response, the examiner issued a final rejection, along with an additional ground for rejection based on the mark’s similarity to the variety denomination ‘Redpulse’. In September 2025, the IPTAB dismissed the plaintiff’s subsequent appeal, holding that even if the examiner’s introduction of the Redpulse ground was procedurally flawed by not providing the plaintiff the opportunity to respond, the subject trademark still posed a significant risk of consumer confusion because of its similarity to the previously registered variety denominations.

Subsequently, the case was appealed before the IP High Court. The plaintiff argued that the applied-for trademark’s designated goods – fresh citrus fruits – are fundamentally distinct from the subject crops of strawberries and melons at the genus or species level. Based on this disparity, the plaintiff contended that there was no likelihood of confusion as to the commercial origin, and thus no violation of Article 34(1)(xvii) of the Trademark Act.

Under established Supreme Court precedents, the similarity of goods is evaluated by assessing their nature, common business practices, distribution channels, and target consumer demographics. The core issue in this case was whether the scope of similarity between goods and crop categories – specifically, between designated goods of a trademark and the target crops of a variety denomination – should be restricted to the genus or species level, as it is under the PVPA.

To address this issue, the court drew a critical distinction between two scenarios: comparing two variety denominations versus comparing a variety denomination against a trademark.

First, the court expressly noted that Article 34(1)(xvii) of the Trademark Act does not state similarity at the genus or species level between the trademark goods and the crop varieties.

Next, the court pointed out that these two scenarios are “handled distinctly” under the PVPA. Under Article 107(3) of the PVPA, variety denominations that are identical or similar to protected denominations of other parties are prohibited from registration where they are likely to cause confusion within the same genus or species. Similarly, under Article 84(2) of the same act, infringement of a protected variety is acknowledged if an identical or similar name to its registered variety denomination is used for a different variety within the same genus or species. However, under Article 107(9) of the PVPA, although a variety denomination cannot be registered if it causes confusion with a previously registered or pending trademark, the trademark goods and the variety crops are not required to belong to the same genus or species.

Furthermore, the court emphasised that given the legislative intent of both laws governing conflicts between applications of trademarks and variety denominations under the first-to-file rule, determining such similarity at the genus or species level may lead to unfair results.

Under this interpretation of relevant provisions, the court rejected the plaintiff’s argument that fresh tangerines, strawberries, and melons are fundamentally distinct. It determined that as fruits, these goods share considerable overlap in trade circumstances, including distribution channels, points of sale, and consumer demographics. As the subject trademark was found to be identical or similar to the previously registered variety denomination in both mark and goods, it was concluded that it falls under the provisions of Article 34(1)(xvii) of the Trademark Act. Consequently, the court affirmed the refusal of registration.

This decision clarifies how to determine trademark registrability in relation to variety denominations registered under the PVPA. That is, similarity between trademarked goods and protected crop varieties is assessed by long-established standards for goods similarity rather than at the genus or species level. This assessment is bolstered by the Ministry of Intellectual Property’s goods similarity code system, which classifies all these items under the same code, G2011, confirming their status as similar goods.

With these developments in mind, future applicants would be well advised to align their filing strategies with this interpretation, which confirms that established commercial standards for goods similarity take precedence over a singular focus on botanical classifications. Adopting this approach will help applicants effectively safeguard their rights and avoid unnecessary legal challenges.