상표의 희석화와 상표법 제34조 제1항 제13호(구법 제7조 제1항 제12호)의 적용요건에 관한 고찰 ╶ 특허법원 2010. 7. 23. 선고 2010허1718 판결의 평석을 중심으로 ╶

Abstract

The theory of dilution in trademark is a theory that has emerged according to the need to expand the scope of protection of trademark rights in modern society, such as changing the function of trademarks. However, according to the dilution theory, if the use of the name brand is recognized to reduce the credit, reputation, or inhalation power of the trademark even if there is no rivalry between the trademark and the third party does not exist and there is no source confusion, it would be an infringement of the trademark rights, which would be inconsistent with the system of our law protecting the registered trademark holders of the designated product. Although some argue that Article 34-1-13 of the Korean Trademark Act is a regulation to prevent dilution of high-profile trademarks, the legislative intent of this section is to prevent the use of trademarks by third parties, not legitimate trademark holders, from interfering with the use of trademarks, or causing ordinary consumers to mislead or mislead or misregister the origin of products through the use of copy trademarks. Thus, in applying Article 34-1-13 of the Trademark Act, after examining whether there is a generally accepted relationship between the goods recognized by the consumer and the goods in which the trademark is used, or whether the nature of the product is a trademark that may cause confusion, the degree of ownership, title, or creation of a particular trademark of a particular person, the same origin or originality of the trademark. The application for registration by 'unfair purpose' should be determined by comprehensively considering the economic relationship, the absence and the actual condition of the transaction. The main purpose of trademark protection is to protect the trademark from unfair competition by the business owner and to prevent the consumer from falling into deception. Therefore, it would be prudent to prohibit the use of similar trademarks by the business owner even if the competition does not exist and there is no source confusion, because it would be considered excessive protection that runs counter to the nature of the competition principle and trademark system.