상표권 침해에 있어서 유사와 혼동에 관한 연구

Abstract

The similarity of trademarks is one of the legal requirements for infringement of trademark rights in Korea's Trademark Act. On the other hand, confusion of trademarks is not prescribed in the legal texts of the Trademark. Regarding the purpose of the Trademark Act to prevent the confusion to the sources of products, the majority of the scholars and precedents point out that the similarity of the trademark should not be judged by solely base on itself, but should be ultimately determined by the confusion of sources. Specifically, confusion under the Trademark Act is not a confusion of the trademark itself but rather a confusion to the source that the trademark is used, and is considered to be a essential standard for determining the similarity of the trademark. But while confusion is a factor or as a standard for judging similarity unlike the standards in ‘Unfair Competition Prevention and Trade Secret Protection Act’, the definition of confusion is quite vague and causes the difficulty distinguishing the concept of similarity. If the trademark is similar to another one and there is a risk of confusion, there would be no dissenting to the view that the trademark right is infringed. However it might be difficult to determine the infringement in the case where either similarity or confusion lacks because the legal criteria of coping with such issues is not clearly established. There are also many cases finding the infringement of trademarks by the actual confusion and by the facts of specific transactions rather than by the similarity which is one of legal requirements. Courts may say that the validity of the infringement is determined by the individual facts presented to the court in each case, but the courts’ rulings might be viewed inconsistently to the third parties who review the cases thereafter. Such rulings of precedents could cause disorder of understanding the standard determining the trademark infringement and hinders the foreseeability in the disputes. This paper reviews the rulings of preceded cases to analyze the degree of considering the specific facts of transaction of products and to clarify the understandings of similarity and confusion in trademark infringement and its legal criteria in detail.