업사이클링과 상표권 침해에 관한 형사법적 고찰

Abstract

Recently, using old items and making them into new products through reforming or upcycling has become a part of the culture. However, the problem is that under the pretext of reducing overconsumption and eng aging in eco-friendly consumption, people often infringe on other peopl e's rights and make profits without any sanctions. Unauthorized use of another person's registered trademark is subject t o criminal liability for trademark infringement, so when reviewing it, it is necessary to strictly judge it according to the type of act. Therefor e, if the buyer repairs or reforms the product as necessary, it cannot b e considered to infringe trademark rights under the First Sale Doctrine, as long as the same is not impaired. However, in the case of luxury goods upcycling or luxury vintage goo ds companies that are currently thriving, it can be seen that they have engaged in new production activities by processing them to the extent that they cannot be recognized as identical to the original products. In this case, since the functions of the trademark, such as source indicatio n and quality assurance, are damaged, the First Sale Doctrine does not apply and should be viewed as an infringement on the rights of the tra demark holder. In this way, criminal liability is determined depending on whether the First Sale Doctrine is acknowledged. So, Legal stability and predictabilit y must be ensured by explicitly stipulating the First Sale Doctrine prov isions and exceptions to which the First Sale Doctrine does not apply i n the Trademark Act. In addition, buyers who purchase reformed or upcycled products that h ave been processed to the extent of damaging their sameness will not be punished, but if they resell them, they may also be subject to punis hment, so they should be careful. Lastly, in the case of so-called ‘indirect infringement’, which is at a s tage before trademark infringement, it should be considered subject to t rademark infringement, as the current trademark law stipulates that it i s considered an infringement. However, considering the problem of crim inal law system and imbalace of punishment, acts that infringe trademar k rights must be explicitly divided into direct infringement and indirect infringement. And it is a need to revise the law so that trademark infri ngement, which is a punishment, applies only to acts that directly infrin ge trademark rights, and only civil sanctions are applied to indirect infr ingements.