2단 병기상표 중 일단만의 사용을 둘러싼 제 문제

• 영문명: The Matters on Using one row alone in the mark written in two rows -Supreme Court en banc Decision 2012Hu2463, Sep. 26, 2013-
• 발행기관: 세창출판사
• 저자명: 이철승(Lee Chel Seung)
• 간행물 정보: 『창작과 권리』2014년 겨울호 (제77호), 57~108쪽, 전체 51쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.12.01

영문 초록

In actual trade, it is wide spread to use after applying some alterations in the registered trademark depending on the product's nature, sales market, and changes in time. But the Supreme Court has considered the English letters and their pronunciation in Korean letters, in the mark written English-Korean alphabet letters, as an important part respectively. And in case used by only some part of the registered trademark, the Supreme Court did not judge it identical use of the trademark. Finally, it is applied flexibly in interpreting the boundaries acknowledged in using registered trademark. The Supreme Court, that is, declared the decision that it uses to protect trademark owner's freedom or general customer's trust in recognizing the identity of the mark. Supreme Court en banc Decision 2012Hu2463, Sep. 26, 2013 (hereinafter referred to as "corresponding decision") judged that using a trademark composed of either English alphabet letters or Korean ones in the registered trademark corresponds to using mark which is likely to be identical with the registered trademark in terms of trade norms, in case that the registered mark is a combination of English letters and their pronunciation in Korean letters, even though it does not create a new concept from the combination besides the concept recognized from the meaning of the English word itself and it is used after omitting either the English alphabet letters or their Korean pronunciation, as long as it is likely to be called it identically to the general consumers or trader in general. This corresponding decision interpreted the boundaries acknowledged as trademark use flexibly. Accordingly, it contributes greatly to the protection of trademark owner's freedom or general customer's trust regarding recognition of the mark identity. However, another tasks are caused by this corresponding decision, and they are as in the following. First, the problem about a fairness comes up between sole mark and mark written in both languages. According to the purpose of corresponding decision, i) the trademark owner who gets registration about mark combined in both English and Korean language can use either English portion or Korean one. In this case, he/she can avoid canceling registered trademark because it is applicable to the use of registered trademark. On the other hand, ii) the trademark owner who gets registration about mark combined in either English or Korean language should use it as he/she gets a respective registration, for he/she can avoid canceling trademark in that case. Therefore, in comparison to a case ii), a case i) has wider range of use unfairly. It is likely to be unreasonable because it is against the fairness, considering a trademark owner who got a registration already like the case ii). Also, Considering that case ii) is included in the use of registered trademark, it is contradictory to the precedent that an English mark is identical to a Korean mark having an identical name. However, i) it would be more cost-effective to apply a mark using both English and Korean language than to apply a mark using either English or Korean respectively. Compared to the application of English letters only, scope of a right is likely to lessen because the name is limited due to Korean letters. So it is unlikely appropriate to approach by fairness matter, for it is the matter on which method an applicant chooses. Also, ii) in cancellation trial due to non-use, the registered trademark can be judged as having identity with mark using actually. On the other hand, both marks can be judged as identity in identical decision, so that both decisions can cause problems. However, in identical decision, it can be judged as similarity or identity in name, in case that a mark with English letters alone is registered prior and a mark with similar or identical Korean letters alone is applied later. It was caused from that each law is different from its intent. Second, considering the limit

목차

Ⅰ. 서론

Ⅱ. 대상판결의 경위

Ⅲ. 대상판결의 쟁점별 평석

Ⅳ. 대상판결에 따른 과제

Ⅴ. 결론

참고문헌

Abstract

키워드

등록상표의 사용 동일한 상표 상표의 불사용 등록상표의 상단 영어부분 등록상표의 정당사용 use of registered trademark identical trademark non-use of a trademark the upper English portion of the registered trademark genuine use of a registered