“섬 초” 상표의 무효에 대하여

• 영문명: A Case Study Regarding Trademark Appeal Board Case No. 2018DANG639, and Patent Court Case No. 2018HUR5020 on Becoming Generic Name of “섬 초”(it means “vegetables from islands”) for Vegetables for Class 31
• 발행기관: 세창출판사
• 저자명: 최덕규(Dukkyu Choi)
• 간행물 정보: 『창작과 권리』2019년 여름호 (제95호), 2~23쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.06.30

영문 초록

A registered trademark “섬 초”(it means “vegetables from islands”) was registered on March 29, 1996 for vegetables including spinach for class 31. The trademark has been used on spinach for more than 20 years in Korea. A petitioner filed an invalidation against the registered mark under the ground that the trademark has become a generic name for spinach. If a trademark has become a generic name for the product, the mark should be cancelled rather than invalidated. However, Korean Trademark Law provides that an invalidation instead of cancellation shall be filed in case a trademark has become a generic name. This provision was introduced in Korean Trademark Law in 2001. This is a wrong provision because they do not understand differences between invalidation and cancellation. This is a very serious matter in the Korean trademark system. The Korean Trademark Office decided that the trademark has become a generic name for spinach at the time of filing the invalidation. However, the Korean Patent Court reversed the Trademark Office Decision, reasoning that becoming a generic name should be determined at the time of registration of the mark but not at the time of filing the invalidation. The Court is totally wrong.

목차

Ⅰ. 머리말

Ⅱ. 심결문과 판결문

Ⅲ. 평 석

Ⅴ. 결 어

키워드

일반명칭 관용명칭 일반명칭화 기술표장 무효 취소 generic name common name becoming generic name descriptive mark invalidation cancellation