상표권에 관한 한미 FTA의 이해 및 분석

Abstract

Korea and the U.S. reached Free Trade Agreement(hereinafter “Agreement”) on April 2, 2007 subsequent to two-year negotiations. This Agreement is expected to influence various areas in the societies. A number of intellectual property issues arise from the Agreement as well. Among them, especially in trademark, four main issues are raised: the concept of trademark, certification mark, famous mark protection and registration of license agreement. First, currently, in Korea, only visibly recognizable mark can be protected as a trademark. However, the Agreement requires all marks, regardless of its visible recognition, should be protected as a trademark if they have distinctiveness from other marks. Accordingly, under the Agreement, scent and sound can be protected as a trademark in the future. Second, under current Korean trademark law, certification mark can be registered as a trademark. However, Korean government needs to amend trademark law to insert a new certification mark system pursuant to the Agreement. Third, under the Agreement, it is not clear to what extent famous mark must be protected: whether famous mark protection will be expanded to trademark dilution. It is dubious whether Korean trademark law protects against dilution. However, Unfair Competition Law stipulates quite broad protection for famous mark including dilution. Accordingly, the famous mark provision of the Agreement will not change Korean trademark law. Finally, Korean trademark law requires exclusive trademark license to be registered. However, the Agreement provides that a license agreement does not need to be registered. The registration requirement has its own reason under Korean law, but it is inevitable to eliminate registration requirement for exclusive license agreement under the Agreement. To minimize resulted impact, unique Korean situation must be considered prior to amending relative provisions.