등록 이후 사용에 의해 식별력을 취득한 상표 구성 부분의 법적 취급 - 대법원 2011후3698 전원합의체 판결의 의미와 전망을 중심으로 -

Abstract

It does not permit the registration of a non distinctive trademark. An inherently non distinctive trademark, however, may deserveprotection as a trademark and exceptionally permitted to be registered inview of the elements of the prior use principle. The prior use principlestates that if the mark has been used by a particular person as a mark forhis goods for a long enough period of time and thereby acquireddistinctiveness as a trademark indicating the source among tradersand/or consumers (Art. 6 (2)). In case, the trademark having nodistinctiveness at the time of decision whether to register and finallyacquired a degree of distinctiveness required by Art. 6 (2) afterregistration by its use, how such a registered trademark should betreated?Council Regulation (EC) No 207/2009 of 26 February 2009 onthe Community trade mark Art. 52(2) provides an exception to theabsolute grounds for invalidity: Where the Community trade mark hasbeen registered..., it may nevertheless not be declared invalid if, inconsequence of the use which has been made of it, it has afterregistration acquired a distinctive character in relation to the goods orservices for which it is registered. However, in accordance withSupreme Court ruling on March 20, 2014, 2011hu3698, the trademarkacquired distinctiveness by its use after registration should be invalidated by trial. Furthermore, in trial to confirm scope of right, thetime of judgment whether a trademark acquired distinctiveness by itsuse should be by the time of trial decision.