등록상표의 불사용취소심판에서 사용권자의 지위에 관한 고찰

Abstract

The purpose of nonuse cancellation proceeding for registered trademarks is to impose sanctions on unused trademarks. In this regard, current precedents and opinions tend to broadly recognize the fair users of registered trademarks including implied licensee. However, implied license is a principle that limits exclusive right by intellectual property right owner within certain range. Therefore, if use of trademark by implied licensee is unconditionally recognized as fair use in the nonuse cancellation proceeding, it may strengthen protection of trademark owner, which is contrary to purpose of the implied license. In addition, if implied licensee is a related person of the trademark owner, the trademark owner may abuse it to avoid the nonuse cancellation proceeding and promote unfair support to the related person. Especially, if implied licensee due to the acquiescence of the trademark owner is recognized as the fair user, the necessity for fair use of the trademark by the explicit license may be reduced, which undermine the quality control function of the trademark. In summary, considering purpose of implied license, relationship with unfair trade and quality control aspect of trademark license, it is necessary to carefully judge whether implied licensee is a fair user in the nonuse cancellation proceeding.