Qualitex Co. v. Jacobson Products Co., Inc. 판결에 대한 검토- 단일색채만으로 상표등록이 가능한가 -

Abstract

Owing to the significance of product color(s) on sale, a company is consuming more time and money, in order to search for what color(s) will be most profitable. When the aesthetic effect and psychological effect of color demonstrate the products, the color gives its attractiveness to consumers, as well as economic rewards to manufacturer. The Court's holding in Qualitex Co. v. Jacobson Products Co., Inc.(hereinafter Qualitex) is that color per se can receive the trademark protection, namely, the longstanding tradition of the shade confusion theory and the color depletion theory has ceased, but the functionality doctrine and the proof of secondary meaning in the related marketplace are vivid and adequate for color per se trademarks. Based on the fact that the intellectual property rights(IPRs) included trademark right are seeking the balance between the private property right and the public domain, we can find the balance point which inclined toward the applicant from the public in Qualitex. It shows us that the biased view toward the public interest meliorates, directing at the substantially legal goals of IPRs, with respect to the color per se trademark. The legal theory and practice of the color trademark related in Korean are different from Qualitex's ruling in USA. In accordance with the legal basis of trademark law, even color per se is not inherently distinctive mark, it may be protected trademark after passages both having the non-function of color and proving the secondary meaning. In section 6(2) and section 7(1) of Trademark Act of Korea should be implanted both of them, instead of the shade confusion/ the color depletion theory.