상표법 제3조‘상표등록 받을 수 있는 자’ 규정의 타당성 및 보완방안

Abstract

It is intended for this paper to have the Registration DoctrineSystem implemented at the trademark application and examinationstage, during which legal stability and predictability are most important,and to have the Use Doctrine System implemented at the maintenanceand exercise stage of the trademark rights, during which reasonabletrademark use and legal validity are important. The Korean Trademark Act is based on the Registration DoctrineSystem which grants the registration of a trademark regardless of itsuse. Although, Article 3 of the Korean Trademark Act stipulates thatonly the person who uses or intends to use a trademark in the Republicof Korea may be entitled to have his/her trademark registered. Thisarticle is fundamentally incompatible with the Registration DoctrineSystem or the first-to-file system adopted by the Korean TrademarkAct. Moreover, it is realistically impractical because confirming one'sinternal intent-to-use at the trademark application stage is nearlyimpossible. Therefore, Article 3 of the Korean Trademark Act shouldbe abolished or maintained perfunctorily on the condition of thenominal stipulation being excluded from the grounds for rejection inArticle 23 and from the grounds for invalidation in Article 71. Additionally, the Article 3 condition of the Korean Trademark Act provides similarly that no one under the jurisdiction of the KoreanIntellectual Property Office shall have a trademark registered duringhis/her tenure in office. The trademark registration application does notrequire novelty and creation, and a trademark examiner is not legallyobligated to uphold the secrecy of a trademark, unlike the otherintellectual property rights of patent, design, and utility model. Thus, theArticle 3 condition is illogical and should be abolished immediately. On the other hand, since unused trademarks deserve little legalprotection, this paper supports the curtailment of legal rights for unusedtrademark holders and ‘any person’ may request a trial for revoking anunused registered trademark.