국제적 상표권 간접침해의 준거법과 간접침해 성립여부 - 속지주의와의 관계를 중심으로 -

Abstract

Traditionally, trademark rights have been valid inside the country where the trademark rights had been registered by the territorial principle. Under the territorial principle, it was commonly interpreted that domestic trademark rights couldn’t be infringed by foreign activities and international trademark rights can’t be infringed by domestic activities. In these cases, when determining the infringement of trademark, the issue is raised whether the indirect trademark infringement depends on the assumption that direct trademark infringement had already established. Also, choice of law to regulate the trademark infringement problem between nations could bring argument based on private international law. However, due to the globalization that is increasing the business transaction and international distribution, direct trademark infringements by these international transactions are occurring these days. This issue raises difficulties how to regulate the direct infringement problem legitimately regarding the territorial principle. Mostly, the types of multiple infringing activities related to direct trademark infringement are intimate incitement or conspiracy. However the issue of determining the indirect trademark infringement occurred by one’s preparation of direct infringement or by aid and abet is more frequently rising these days. If the country where indirect trademark infringement occurred is different from the country of direct trademark infringement brings need to reexamine the following issues; the choice of law, possibility of imposing legal responsibility violation of territorial principle on international indirect trademark infringements. Also the question whether the indirect trademark infringements requires direct trademark infringement had been set before the indirect trademark infringements was made could be important issue when determining the trademark infringement. These kind of issues might be difficult to solve by maintaining the balance between territorial principle. Therefore, this essay will explore the private international law to find a standard to choose the law to regulate the international trademark indirect infringement between multiple countries and examine the connection between indirect trademark infringement and direct trademark infringement. Finally this essay will seek the possibility whether the indirect infringement could be established on overall issues.