부정한 목적으로 유명상표를 모방하여 출원한 상표에 관한 소고 - 대법원 2017후752 등록무효（상）을 중심으로 -

Abstract

A rule regarding to ‘A trademark applied to be identical or similar to a trademark of others for unfair purpose (hereafter *the usage for unfair purpose*) is provided on the Trademark Act Article 34-1-13 currently, since its introduction under the revised Trademark Act in 1997 and several revised. In preexistence judicial precedents, the court has suggested some requirements, - a recognition level of imitation target trademark, a degree of creativity, an identical or similar level between trademarks, an economical connection, etc. to decide about “the usage for unfair purpose" , but any of the factors was not a conclusive factor to decide for the usage of unfair purpose. The court has decided “the unfair purpose" by another factor, despite one or more lacks of the requirements. Meanwhile, Article 34-1-13 has a wider perspective compared with another rules of an imitation trademark about a famous level, a territorial range and a field of product etc. It seems why the most conclusive factor is subjective one - the unfair purpose - that has decisive effect on this rule. Therefore, this paper is focused on what the conclusive factor is to make for "the unfair purpose" through the 2007hu752 case and a comparison study with the preexistence cases. All of courts decided under the requirements for the unfair purpose, but they did not clarify what the most conclusive factor is. I think the most conclusive factor is whether he/she is aware an imitation target trademark at the time of the trademark application. Almost all cases used the requirements only to confirm as supporting or supplementary means. The court must to clarify what the real intention make to decide for the unfair purpose. Because, Article 34-1-13 of the trademark act is an exception to the great principle of the territorial privilege for jurisdiction in the Trademark Act, I think that the court have to represent clearly the real intention to make the unfair purpose. What the court clearly states the real intention of “the unfair purpose" is corresponded to the legislative intent of Article 34-1-13.