상표적 사용과 그 요건

Abstract

The just use of trademark assumes that it qualifies all requirments, and this safeguards the effectivness of trademark law, and fair use against its infringement. First, the use of trademark as a trademark is related to its owner's right to monopolize the trademark. The use of trademark as a trademark is criteria whether the owner of trademark uses his or her trademark fairly or not. If the owner uses the trademark unfairly, the registration of the trademark could be canceled. Second, the use of trademark as a trademark is also related the right to prevent other peopl's use of the trademark. Whether a third party infringes the trademark owner's right or not is judged depending on whether the third party uses the trademark as a trademark. There is no difference between the owner's use of trademark as a trademark and the third party's use of that. The only difference is that the owner has the right to use the trademark and the third party has not. The qualification of the use of trademark as a trademark is based on the trademark law. The qualification must be applied rigorously to the principle of legalty. The qualification of the use of trademark is assessed from the point of main agent, behaviour as a use of trademark, object as goods and the discrimination of the trademark. The clearer the qualification is, the easier the distinction of the use of trademark from other use of trademark.