상표법 제51조에 관한 소고

Abstract

Under the Trademark Law article 51.1., no right in trademark shall be extended to the mark which is indicating one's own name, title or trade name etc, descriptive mark, a trademark used commonly for goods, a trademark formed of distinguished geographic denomination and abbreviation thereof or a map in usually used ways. Moreover no right in trademark shall be extended to a three-dimensional mark not having discrimination, a trademark with three- dimensional shape or a color or combination of colors relating to function. The Trademark Law article 51.1 illustrates typical marks not have discrimination. So, as to the trademarks which are relevant to the Trademark Law article 6., though not in the article 51., the right in trademark shall not be extended in the specific example. Trademarks covered by article 51., except a mark which is indicating one's own name, title or trade name etc., not having discrimination, can not indicate the relation between goods and owner's business. Therefore the use of those marks are not use as a trademark, originally no right in trademark shall be extended to such marks. But the trademark which is indicating one's own name, title or trade name etc., have discrimination, and the use of those marks are use as a trademark. Even though they used as trademarks, article 51. does not extend a right in trademark to such use of marks so long as they are used in usually used ways. “How to use in usually used ways” has the same meaning in both article 6. and article 51.. But there are differences of object and criterion of decision with respect to these.