유럽에서의 “부정한 목적(bad faith)”의 상표등록

• 영문명: Bad Faith Trademark Application
• 발행기관: 세창출판사
• 저자명: 최덕규(Dukkyu Choi)
• 간행물 정보: 『창작과 권리』2019년 겨울호 (제97호), 23~28쪽, 전체 6쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.12.01

영문 초록

Three private persons found a successful music bar “Café del Mar” and market it. But after years, one of the three registered a European figurative mark Café del Mar in his own name-a bad faith trademark application? The two plaintiffs before the European Court [Court of Justice of the European Union (CJEU)], together with the defendant, were the three founders and co-owners of the music bar Café del Mar in the Balearic Islands. Since the opening of the “Café del Mar” music bar in Ibiza in 1980, an earlier “Café del Mar” sign has been used for all commercial activities. Thus the three entrepreneurs-the two plaintiffs and the defendant-founded the company Café del Mar, the aim of which was to continue the hotel business. In 1997, the same people founded Can Ganguil with the aim of marketing fashion, products and services related to music. In 1998, the defendant was granted a power of attorney to represent Can Ganguil. The dispute arose when, from 1999 onwards, the defendant filed two applications for an European figurative mark “Café del Mar”-exclusively in his own name. The Cancellation Division of the EUIPO declared the contested trade mark invalid in 2015 on the grounds that it had been filed in bad faith. However, by decision of 4 September 2017 (“the contested decision”), the EUIPO Board of Appeal annulled the decision of the Cancellation Division. Even if Café del Mar did not legally exist at the time of the contested application for registration, the commercial use of the earlier sign Café del Mar was nevertheless sufficient to establish that the defendant was not entitled to register that sign exclusively under its own name, the European Court stated. Nor can ignorance of the possibility of applying for registration in the name of natural persons justify registration in one’s own name. Furthermore, the Board of Appeal erred in concluding that the authority granted to the defendant could be interpreted as the express consent of the applicants to the registration of rights in his name. The defendant therefore acted in bad faith, the CJEU ruled, and annulled the contested decision of the Board of Appeal.

목차

Ⅰ. 사건의 개요

Ⅱ. 부정한 목적의 출원여부

Ⅲ. 비윤리적 행위

Ⅳ. 위임은 모든 권리에 대한 해방구가 아니다

Ⅴ. 결론

Abstract

키워드

부정한 목적의 상표출원 오인·혼동의 가능성 단체표장 위임장(위임사항) 악의 비윤리적 행위 명시적 동의 bad faith trademark application likelihood of confusion collective mark power of attorney malice unethical behaviour express consent