결합상표의 기술성 판단에 관한 실무상쟁점들의 비교법적인 고찰

Abstract

In the present, it becomes to be more difficult to determine descriptiveness in Art.6 Para.1 Item.3 of Trademark Act on the whole of the marks as well as each component part for combined marks. Therefore, this paper will study concretely on several practical issues about determining descriptiveness of combined marks by considering the above situation. Especially, it is needed to found legitimacy of determination obviously by comparing and studying guidelines of determination in several other countries on whether Korean criteria of determination meet international standards or Trademark Examination Guidelines cause unnecessary misunderstanding by presenting unclear guidelines. This paper studies on (1) concrete criteria about determining descriptiveness of combined marks, (2) legitimacy of practical arguments that a combined mark should be also registered by deciding non-descriptive mark in Korea based on precedents of trademark registration in other countries, (3) concrete methods determining descriptiveness of the mark pursuant to each combined configuration as well as problems on determining descriptiveness of the mark when a combined mark becomes catchphrase or slogan. This paper tries to organize and suggest concrete creteria for determining descriptiveness of combined Marks in Korea by comparing and analyzing criteria of determination based on Trademark Examination Guidelines and judicial precedents in EU, US, Japan and China on practical issues about determining descriptiveness of combined Marks since a objective study has not been made on determining descriptiveness of combined marks in Korea. On the other hand, there is no problem specially on general criteria of determination in Korea since Korean courts’ decisions and KIPO’s examination practice on descriptiveness of combined marks is almost similar to guidelines of determination in other main countries. But it shall be especially needed to organize concrete creteria about determining descriptiveness of combined marks pursuant to each combined configuration in Trademark Examination Guidelines and judicial precedents since the existing abstract criteria in Korea have problems to determine descriptiveness of the marks exactly.