상표법상 선행상표 관련 부등록사유 정비방안

Abstract

Due to frequent revisions, the reasons for non-registration under our current trademark act have a long and complicated structure, with Article 34, Paragraph 1. In particular, the reasons for non-registration related to the preceding trademark have a problem in that the application requirements are partially overlapped, and all related reasons must be reviewed and listed, and the application examples of specific provisions are very few. For example, if there is a well-known or famous preceding trademark and the trademark is registered, Article 34 (1) 7, 9, 11, and 12 of the Trademark Act may be applied in duplicate for a subsequent application, and if a trademark registered in a party to the treaty becomes well-known or famous, and if there is a subsequent trademark, No. 9, 11, 12, and 21 may be applied in duplicate. Depending on the applicant's unfair purpose, relationship with the preceding trademark holder, and whether the applicant knew the preceding trademark, No. 13 and No. 20 can also be applied in duplicate. Regarding the problem of overlapping application of these reasons for non-registration, the examiner who examines the trademark application shall review all related reasons. It is also difficult for the applicant to determine whether to register a trademark and to respond to the notification of the reason for rejection. Accordingly, it is necessary to review the overlapping parts between the reasons for non-registration related to the preceding trademark to promote the convenience of the applicant through integration and separation of regulations, and to promote the efficiency of examination of trademark applications. Therefore, this article suggested the following improvement measures through a comprehensive review of the reasons for non-registration of trademarks related to prior trademarks. First, ⅰ) as a plan to improve the reason for rejection, ① a new proposal for the deletion of the latter part of Article 34 (1) 12 (consumer deception) and supplementary provisions for source confusion, ② a new proposal for deletion or amendment of Article 34 (1) 13 (unfair purpose), ③ a plan for integration of Article 34 (1) 20 (specific trust relations) and 21 (registered trademark rights of the parties to the treaty) and ④ a plan for the period of exclusion of reasons for invalidation were proposed. Next, ⅱ) to limit the overlapping application of we proposed ① a plan to apply sequentially according to the application of Article 34 (1) 7 (pre-applied registered trademark) and 9 (unregistered well-known trademark), ② apply Article 34 (1) 20 (specific trust relations) and 21 (registered trademark rights of the parties to the treaty) first, and apply them sequentially according to registration status, scope of application, and degree of recognition.