단일 색채상표의 상표법상 보호에 한 검토

Abstract

It is unarguable that the domain of trademark law and the scope of trademark protection has grown exponentially in the past decades. Today, any sign, including single colors, shapes, sounds, smells, video clips, holograms and even gestures can be registered as a mark. Accordingly these types of marks, commonly referred to as non-conventional or non-traditional marks, which encompass the subject matter of design inevitably have caused legal disputes over the extent of a single-color mark. Especially this has called into question the protectability of single color trademarks in the fashion industry, where a brand’s choice of colour is the most important element that reinforces its personality and it is possible to identify the certain brand from just a single pantone colour without an accompanying logo. Pursuant to the Korean Trademark Act, as amended with effect on July 1, 2007, a mark that consists only a color or combination of colors can be registered except any trademark consisting solely of colors or the combination of colors which is essential to secure the functions of the designated goods of a registered trademark or their packaging. However, the KIPO examination guidelines provide that such mark can be registered only if it has acquired distinctiveness on the basis of prolonged use prior to the filing of the application. essential to secure the functions of the designated goods of a registered trademark or their packaging. This article analyzes ‘Red Sole’ case in the U.S. which squarely addressed the issue of whether a single colour may serve as a legally protected trademark in the fashion industry and addresses its for the Korean Trademark Act, focusing functionality doctrine and acquisition of distinctiveness by use. Part Ⅱ provides a brief overview of sole color mark and requirements for protection under the Lanham Act. Part Ⅲ analyzes judgements by the United States District Court for the Southern District of New York and the Second Court of Appeal on ‘Red Sole’, which brought about heated discussions among legal field aw well as fashion communities. Part Ⅳ discusses these judgements its implication for the current Korean Trademark Act.