상표권 남용에 관한 판례의 유형별 고찰: 한국과 일본의 판례를 중심으로

Abstract

Several types of abuse of trademark rights have appeared unlikecases of abuse of patent rights in the actual infringement cases oftrademark rights, etc., since trademark rights unlike patent rights relatedto the invention have conventionally accumulated credit and are closelyrelated to credit. The assertion of abuse of trademark rights have been made inseveral types of cases by a pre-user of a trademark in trademark disputeand courts have made many positive decision for this assertion. There are many cases that Korean courts determined abuse oftrademark rights for each case in trademark dispute. On the other hand,there have been several decision on abuse of trademark rights intrademark dispute since long time ago under Japan systemssubstantially similar to Korean trademark law systems, so I think thatJapanese legal principle of determination on abuse of trademark rightslike this have been established more variously than Korean legalprinciple about each case of trademark dispute by Japanese courts. Particularly, there have been the most decision Korean courts havedecided that the exercise of trademark rights come under abuse oftrademark rights based on an exercise against principle of good faithand public order, and Korean Supreme Court recently decided that the exercise of trademark rights come under abuse of trademark rights basedon the exercise of trademark rights which trademark registration willcome to invalidation obviously. Therefore, a pre-user of a trademark willbe able to make an assertion of abuse of trademark rights based on anexercise against principle of good faith and public order and the exerciseof trademark rights which trademark registration will come toinvalidation obviously at the same time, when the trademark isregistered after a trademark right holder copy the trademark of a preuserand apply for registration. And the courts will be able to determineon the above all bases of the assertion simultaneously. On the otherhand, I think that the problem on period of limitation as well as reasonsfor invalidation also have to be considered by being referred to Japaneseinterpretation of legal principle in determining abuse of trademark rightsabout the exercise of trademark rights which trademark registration willcome to invalidation obviously. In conclusion, this paper is making comparative study on types ofabuse of trademark rights in Korean trademark dispute, decision ofKorean Supreme court related to the above dispute, types of decision ofcourts on abuse of trademark rights in Japan and an application of abuseof rights for each case in trademark dispute.