부정경쟁방지법 제2조 제1호 (자)목에서의 상품형태 보호기준에 관한 연구

Abstract

Consumers take account of whole shape and detailed design/ornaments of goods aswell as technological aspect of the goods as criteria of selection when selecting thegoods. Particularly, a variety of distinct designs of goods emerged according todevelopment and standardization of the technology, and the design makes the goodsdistinguished from another. Thus, the design of the goods is considered as asignificant value. Meanwhile, the shape of goods is produced while considering beauty andimprovement of production efficiency, and thus there are goods with identical orsimilar design in the same arts. Additionally, the factors consisting of the shape ofgoods are exposed in the appearance and thereby it makes the imitation of the goodseasy when comparing to patent, creation of technical idea. Consequently, theimprudent imitation of the shape of goods produced by a competitor get increased. Such imitations deteriorate creativity passion and mess up the relevant market as wellas slow down development of the industry. Therefore, Article 2, (ix), UnfairCompetition Prevention Act, which was amended in 2004, protects the shape ofgoods regardless of registration of the shape of goods by defining “an act oftransferring, assigning, exhibiting, importing or exporting goods whose shape has beencopied from the goods produced by another person.” as an act of unfair competition. Additionally, amended Unfair Competition Prevention Act in 2017 described the actis a subject of criminal punishment because the damage caused by the act is directand enormous as well as the act disturbs fair trade order. However, when investigating cases related to Article 2, (ix), Unfair CompetitionPrevention Act, clear rules were not found in jurisdictions. Further, ‘the shape ofgoods’, ‘copy’ and ‘ordinary form’ are not defined and the interpretation of the termsdepends on jurisdictions. As a result, it can cause myriad lawsuits and thus suppresscreation activity. Therefore, the shape of goods defined in Article 2, (ix), UnfairCompetition Prevention Act deserves protection in the community, and an objectiveand reasonable rules for distinguishing the shape should be established. Further, therule should be applied to acts of unfair competition on the shape of goods deservingto be protected socially.