성과모방행위에 관한 고찰

Abstract

Some achievements which is not protected by intellectualproperty should be used by the general public. When a new bag comesinto the market and the bag shape is not protected by copyright,trademark, design etc., it is free for everyone to imitate the bag whichfirst moved to market. Only if the imitation could be regard as unfaircompetition, this imitation should be prohibited. So, imitation requirescertain circumstances to be recognized as unfair competition. Unfair Competition Prevention Act(UCPA) which came into forcein January.31.2014. provides that imitation of other’s achievementswhich is made by his cost and labor is unfair competition, if theimitation is identical to means of against public oder or fair trade oder. Itcould not be exactly judged the scope of the achievements which iscopied by imitator. We need to determine the standard of theachievements. First, idea should be excluded from those. Second, those includedincludes intangible or material thing. Third, the achievement shouldrequire a competitive individuality(Wettbewerbliche Eigenart) which isused in German Law. That notion combines elements of individualcharacter(as design law) with some (usually modest) degree of marketrecognition for example, attractive aesthetic figuration or technical trait etc. This notion can be a great help to define the scope of theachievement which is regulated by UCPA). If judging whether unfair competition including imitation isrecognized as a tort on Civil Act, we should decide an illegality in thesame degree with unfair competition of UCPA. Actually this is not muchdifferent from tort on Civil Act. But lower court case ruled certaincircumstances as the standard judgement of an illegality. In this casethere is the necessity to judge a concrete situation whether this unfaircompetition disturbs the market order.