상표의 기능 및 상품의 동일성 여부에 관한 小考

• 영문명: A study on the identity of the goods and the function of trademark concerning trademark infringement -mainly focused on Supreme Court Decision 2009Do3929-
• 발행기관: 세창출판사
• 저자명: 신운환(Shin, oun-hwan)
• 간행물 정보: 『창작과 권리』2011년 가을호 (제64호), 106~155쪽, 전체 49쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.09.01

영문 초록

In the case numbered 2009Do3929, the Supreme Court has found it not violative of the Trademark Act to sell sets of playing cards altered with special ink so that the set could be used for fraudulent gambling purpose. The Court held; that the set was lawfully purchased from the trademark holder; that each playing card was printed on its back with special pattern and numbers written with special ink that is visible through infrared light filter and is unidentifiable by naked human eyes; and that in conclusion the defendants act of altering and selling the playing cards do not fall within the ambit of either "modification or alteration to a degree of harming the identity of the goods" or "encroachment upon the trademark's function to show origin of goods or to guarantee the quality of the goods concerned." On this background, this essay is purposed to critically review the above decision of the Supreme Court in the following four points. First, playing cards are basically required to have one and the same back side with the same pattern and color, so that the front face of each card is non-recognizable by the players of the playing cards in general. In this case, the playing cards were altered with special pattern and number to be used unfairly advantageously for some players. This means the cards were specially manufactured for an unfair and illegitimate gambling purpose. Once the playing cards were altered with certain tricky methods for unfair gambling purpose, the cards are no more an instrument for a fair game of cards, and the identity of the goods was discontinued. Second, the playing cards were sold with the original trademark attached and recognizable by ordinary purchasers, but with its back altered with special ink that is non-recognizable by the ordinary purchasers. So, the bona fide purchaser and players of the playing cards altered for unfair purpose would erroneously believe that the cards were manufactured in fair style by the trademark holder. Therefore, the function of trademark to show the origin of goods and to guarantee the quality of the goods were impaired by the act of unfair and illegal alteration. Third, the playing cards concerned were altered for unfair and illegal purpose into goods legally different from the original ones, which means the identity of the goods was discontinued. Therefore, the principle of exhaustion of trademark right has no room for application in cases of this nature. Forth and finally, considering that the act of altering the back side of playing cards with special ink for unfair and illegal purpose tantamounts to both an act of breaking the identity of the goods concerned and harming the function to show the origin of goods and to guarantee their quality, as well as an act outside the ambit of principle of exhaustion of the trademark right, such an act of alteration has overtly intruded the right of the trademark holder. In conclusion, the Supreme Court in this case by failing to fully consider the basic purpose and function of the playing cards has reached an erroneous decision that the act of altering the back side of playing cards with special ink that is non-recognizable through naked human eyes did not impair the identity of the cards, did not harm the basic function of the trademark and did not intrude upon the right of the trademark holder.

목차

Ⅰ. 서(序)

Ⅱ. 사건의 구체적인 사실관계

Ⅲ. 상표의 기능과 상품의 동일성 등에 관한 이론 槪觀

Ⅳ. 상품의 동일성에 관한 국내외 판례의 고찰

Ⅴ. 이건 대법원 판결 내용의 타당성에 관한 분석

참고문헌

Abstract

키워드

상품의 동일성 출처표시기능 품질보증기능 상표권의 소진 구매후의 오인혼동 가능성 identity of goods function of indicating origin function of quality assurance exhaustion doctrine post-purchase confusion