스웨덴의 H&M사와 인도의 상표 트롤(Troll) HM Megabrands사와의 상표 분쟁

• 영문명: Trademark Dispute between the Fashion Giant “H&M” and the Indian Fashion Brand “HM Megabrands”
• 발행기관: 세창출판사
• 저자명: 최덕규(Dukkyu Choi)
• 간행물 정보: 『창작과 권리』2019년 여름호 (제95호), 34~40쪽, 전체 -29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.06.30

영문 초록

The fashion giant H&M has been celebrating a tremendous success story since opening its first store in Sweden 70 years ago. Having already conquered the European, American and Chinese markets in full with fashionable clothing in the lower price segment, H&M is currently expanding its presence in the Indian market. The first stationary business was opened by the Swedes on the subcontinent in 2015 – another 30 shops and an online shop specific to the region of India followed so far. The Indian fashion brand “HM Megabrands”, based in Mumbai, was launched in 2011. In the online shop as well as in stationary stores, the company offers “remarkable high street fashion products” for men and women. In 2016, H&M Hennes & Mauritz AB filed a lawsuit against the Indian fashion house in the Deli High Court. According to H&M’s allegation the company not only unlawfully uses the “H&M” trademark and its red-andwhite appearance, but also operates with similar products on the same market with this trademark. H&M argued that even if they started selling products in India in 2015, they have been producing and exporting clothing in India since 1972. And according to the “Indian Trade Marks Act of 1999”, the export of goods already justifies a use of the mark in India. In addition, H&M argues that the H&M brand was already known before 2015 by the broad Indian public thanks to global advertising. HM Megabrands responded to the allegations by pointing out that HM stood for the initials of company owner Hasim Merchant. And regarding the visual representation of the trademark in red, H&M can not claim a monopoly on the color red. In May, the Deli High Court ruled that HM Megabrands should desist any direct or indirect use of the mark for the time being until the court lawsuit ends. In its justification, the High Court refers to the opening up of the Indian economy in 1991. Since then, the number of travels abroad and the contact of Indians with foreigners has increased greatly. As a result, even trademarks that were not active in the Indian market, could gain a reputation in India. Therefore, it can be assumed that the average Indian consumer associates the products of HM Megabrands with the products of H&M. According to the court, the suffix “Megabrands” would not contribute to the distinction of the two retailer, but rather reinforce the likelihood of confusion. Because in 2011, when HM Megabrands entered the market, H&M was already a “megabrand”, making it even harder for the consumer to differentiate between the two companies. The verdict is seen in India as an important step against the growing problem of “Trademark Trolling”. Trademark trolling in means the regis tration and use of well-known foreign brands to profit from the brand’s reputation. Such judgments and measures help to regain the trust of international trademark owners.

목차

Ⅰ. 사건의 개요

Ⅱ. 델리 고등법원의 판결

Ⅲ. 결 어

키워드

혼동가능성 상표침해 독점권 상표 트롤(상표 괴물) likelihood of confusion trademark infringement monopoly Trademark Troll