상품형태 모방의 지적재산권 침해와 부정경쟁행위 성립요건 비교 연구

Abstract

Achievements which are resulted from heavy investments and hard endeavor in the process to create innovative goods are mainly protected by intellectual property laws such as patents and copyrights. Otherwise, the Unfair Competition Prevention and Trade Secret Protection Act(called Unfair Competition Prevention Act, hereinafter) plays a role as complementary protection. The shape of goods is a competitive element in the market and deserved to be protected by law. The shape of goods is in principle protected by the Design Protection Act, the Trademark Act, or the Copyright Act under the certain conditions that are required to be satisfied by each law. However, shape-copied goods in many cases are rarely concluded to infringements of intellectual properties in courts. Therefore, the Unfair Competition Protection Act plays an important role in the protection of the shape of goods. The copy of the shape of goods may be an act of unfair competition even though it is not an act of infringement of intellectual property right. The copy of the shape of goods can be regulated as a tort of the Civil Act for the case that is not concluded to the unfair competition. However, a balance between restriction and permission for the copy of the shape of goods is required in the enforcement of laws since all new products are influenced in some degree by already existent products. Tight restriction imposed on the copy of the shape of goods may hinder fair competition. On the other hand, unfair competition with free ride renders a decline of creative activities.