선행 저작권에 저촉되는 등록상표의 사용과 저작권침해 - 대법원 2014. 12. 11. 선고 2012다76829 판결 -

Abstract

Korean Trademark Act Article 53(1) prescribes that where a person having a trademark right, an exclusive or ordinary licensee uses a registered trademark, if it conflicts, depending on the using condition, with another person's patent right, utility model right and design right applied before the date of the application for trademark registration, or another person's copyright created before the date of the application for trademark registration, he may not use the registered trademark on such designated goods in conflict without obtaining the consent of the person having the patent right, utility model right, design right or copyright. Recently, the Supreme Court of Korea recognized the animal characters designs that have been used as marks of others in foreign countries as Works Restored by Bern Convention and decided to copyright infringement about the registered trademark use by a third party conflicting with the copyrighted works(Supreme Court Decision 2012Da76829 Decided Dec. 11, 2014). In addition, the Subject Decision gave a rule that the works and trademarks are not on exclusive and alternative relations each other. I examined the validity of the Decision thoroughly from the viewpoint of precedents of the supreme court of Korea and the tenets of the law.