부정경쟁방지법상 유명인의 인적식별표지

Abstract

Recently, with the fever of Korean Wave, such as ‘BTS’ and ‘Squid Game’, has significantly increased the production and sale of illegal goods that take free rides on celebrities’ portraits and names. In the meantime, in the 2020 Supreme Court’s ‘BTS photo card’ case, the decision to judge the economic benefits inherent in the personal identification mark of celebrities as ‘accomplishment’ was made, and the legislative argument for protecting publicity rights gained great momentum. In this situation, in December 2021, Unfair Competition Law §2 (1) (Ta) was newly established. The explanatory memorandum states that the revision has a limitation in protection under the existing supplementary general provision, so individual provision has been prepared separately. However, there are several problems to this that need to be considered. First, the economic interests of celebrities’ personalities could be largely protected even with the existing provisions. Since celebrities are business operators who use their portraits, names, etc. as ‘signs’, they can be applied according to each requirement of individual provisions. Even if the application is limited, as the Supreme Court recently ruled, “accomplishment, etc.” of §2 (1) (Pa), it was not considered that there was a vacuum of protection. Second, individual provisions, unlike the general provision, should be clear enough to directly accommodate specific case groups. However, it is not appropriate techniques of legislation to use broad and open concepts that require value charging by the court as they are in the legal text of individual provisions. Third, although the newly established §2 (1) (Ta) is an individual provision, the phrase “against Fair Commercial Practices or Competition Order”, which is the contents of the general provision, is copied as it is, making it difficult to guess the individual provision unique criteria for unlawfulness. As a result, another general provision was made. This may damage systemic consistency in relation to the general provision. Fourth, despite the establishment of §2 (1) (Ta), there is no substantial change compared to the existing civil remedy of injunction and damages. This legislative attitude strongly doubts the inevitability and legitimacy of revision. This thesis does not completely deny the necessity of protecting the economic interests of personalities of celebrities, but it is written in a critical position in relation to the inevitability of revision, the clarity of the legal text, the uniformity and systemic consistency, and effective changes in remedies.