상표권 남용의 성립요건에 관한 대법원 판례의 검토

Abstract

The purpose of Trademark System is to contribute to the development of industry and to protect the interest of consumers by maintaining the business reputation of those persons using trademarks through the protection of trademarks. Trademark rights should belong to the person who has used the trademark for a long time and has accumulated the reputation of trade. Under the current Trademark Act, without application and registration of Trademark even though somebody has used the Trademark, he cannot be protected as the Trademark holder, the one who filed and registered the same of similar Trademark has the right as the Trademark owner. The problem is how to deal with the case that a person knewthe fact a Trademark used by another person and widely known was not registered and filed and registered the Trademark and claims Trademark infringement the original user. The supreme court regard this kind of exercise of right as abuse of Trademark right. The court says “to be under the abuse of trademark rights, not needed is the subjective requirement which means that the purpose of exercise of trademark is to cause pain and harm to the other party without interest to the right user.” That is not accorded with the main stream of supreme court’s attitude. That standpoint is not understandable. The Trademarks which supreme court regarded as abuse of right were all nullified or cancelled before the decision. regarding to it, it is the problem that the court in charge of the infringement can decide the invalidity of the trademark. Until now, there is no case dealt with it, in patent infringement case the supreme court says that when the registered patent has the cause of invalidity it is possible. There is an opinion that the theory can be adapted to the trademark case. The general principle of abuse of rights is acknowledged when the right itself is legal, valid and flawless, and prohibition of abuse of rights does not mean the deprive or restraint but mean that only the limitation of the way of exercise of th right. But the in the case of abuse of patent right, it is clear and evident that the patent has the cause of invalidity. In this case, the patent right is to disapprove, the protection by injunction or infringement cannot be approved. Considering these, there are natural difference between abuse of patent having cause of invalidity and general that of right. So it has theoretical problem to treat these case as abuse of right.