불공정한 상표권 사용료에 관한 상표법상 해결 방안의 검토

Abstract

The question of the unfairnes of trademark right royalty has ben raised recently. Itcan be sen that the main isue here is not the brand license royalties betwen diferentcompanies, but trademark right royalties betwen the holding company and afilateswithin the same corporate group. In this way, trademark right royalty betwen holdingcompany and afilate is emphasized in brand practice and other laws as trademark rightroyalty of a narow sense. In this regard, it is a problem that the holding company claimsfor overcharge, undercharge or no charge of trademark right royalty to afilates. Thisproblem is mainly recognized as being solved by the Monopoly Regulation and FairTrade Act, the Tax Act or the Criminal Act, and solutions under the Trademark Act arerarely considered. Therefore, this paper studies what methods can be devised as asolution under the Trademark Act regarding the calculation of unfair trademark rightroyalty betwen the holding company and its afilate. In principle, due to the limitationsin the nature of the Trademark Act, it is dificult to find solutions under the TrademarkAct regarding the calculation of unfair trademark right royalty. For this, it can beconsidered that it is more desirable to devise solutions in the Monopoly Regulation and Fair Trade Act, etc. based on existing literature. However, as the legal basis for theestablishment of license rights is based on the provisions of the Trademark Act and socialcritcism about the unfairnes of the trademark right royalty is rising, I think it is timeto discus solutions under the Trademark Act. As solutions under the Trademark Act, in the regulatory aspect of aplied trademarks,the method of stipulating the aplication of Article 34 (1) 4 of the Trademark Act relatedto violation of public order and morals in the Trademark Examination Standards can beconsidered. In the regulatory aspect of registered trademarks, it wil be necesary toexamine that the abuse of trademark rights is stipulated in the Trademark Act byrefering to the regulations in the old Patent Act and the exercise or use of trademarkrights in the event of abuse of trademark rights is restricted and this is stipulated as thereason for the cancelation of trademark registration in Article 19 (1) of the TrademarkAct. Above al, it wil be necesary that the Fair Trade Commision or KIPO establish aguideline that can objectively determine the unfairnes of trademark right royalty inconsideration of market conditons and the calculation of the usual trademark rightroyalty in the existing court decisions.