공서양속위반을 들어 상표등록을 거절하거나 무효화한 우리 판례들에 대한 비판적 분석

Abstract

Korean courts has denied or invalidated a trademark registration on the ground of a violation of public order and morality provision, 4th Sub-sec. under Sec. 1 of Article 7 of Korean Trademark Act in many cases where the other Sub-sessions under Sec. 1 of Article 7 should have been applied. Furthermore, the Korean Supreme Court recently ruled so-called 'Woori Bank’(meaning Our Bank in Korean) cases which dramatically stretched the scope of the public order and morality provision to the area where the real issue should have been the distinctiveness requirement set forth under Article 6. This paper classifies the massive Korean cases dealing with a violation of public order and morality into 4 basic categories and critically analyzes above cases. As a result, this paper shows that such reckless expansion of public order and morality concept by our court is unreasonable and should be rectified soon because of the following reasons. At first, Applying the public order and morality provision which is just 4th Sub-sec. of the Sec. 1 of Article 7 to cases which are actually related to the other Sub-sessions, and even to a case like 'Our Bank’ case which is only about the distinctiveness requirement under Article 6 never complies with Korean Trademark Act’s delicate provisions. Secondly, such expansive application could be a blind adoption of Japanese courts’ interpretation of public order and morality in Japanese Trademark Act even though there are many differences between the two countries’ trademark codes. Thirdly, considering that the trademark law is the act regulating the mutual relation between selfish merchants, not the moral citizens, the public order and morality concept should be overemphasized. Fourthly, such loose interpretation of the range of public order and morality provision has induced rampant and meaningless arguments based on the above provision and have severely harmed the effectiveness of trademark litigation. In conclusion, the scope of public order and morality provision should be more strictly limited to the area where a trademark seems to be clearly obscene and contrary to democratic basic order and so on.