상표법 제7조 제1항 제12호에서의 ‘외국’에서 특정인의 상품출처로서 인식될 정도의 판단에 관한 고찰

Abstract

Article 7(1) item 10 of the Trademark Act(hereinafter referred to as “the subject provision”) states that “no trademark falling under the following trademark shall be registered: any trademark which is identical or similar to a trademark(excluding any geographical indication) recognized as indicating the goods of a particular person by consumers inside or outside of the Republic of Korea, and which is used for unjustifiable purpose, such as obtaining unfair profits or inflicting harms on the particular person”. Especially, it is important that the courts determine degree for being recognized as indicating the goods of a particular person by consumers outside of the Republic of Korea in applying the subject provision, since it is difficult for us to determine that degree objectively outside of the Republic of Korea. By the way, recently the Supreme Court decisions is considering unjustifiable purpose for dead-copy of foreign pre-used marks as a significant factor for determining whether being recognized as indicating the goods of a particular person by consumers outside of the Republic of Korea. In conclusion, I think it is reasonable that the Supreme Court is determining whether being recognized as Indicating the Goods of a particular person by consumers outside of the Republic of Korea such as the above now when considering the purpose of the legislation of the subject provision and the Patent Court and Intellectual Property Trial and Appeal Board should understand and follow the Supreme Court’s legal principles of decisions such as the above.