상표의 희석행위 금지청구와 입증책임 -실제 희석화 對 희석화의 가능성-

Abstract

This article argues that the plaintiff in a trademark dilution case should bear the burden of proof of ‘likelihood of dilution,’ not that of ‘actual dilution.’ The rationales for the argument include: first, ‘use causing dilution’ can be interpreted as ‘use that is likely to cause dilution,’ considering that ‘use causing confusion’ has been interpreted by the court as including the ‘use that is likely to cause confusion.’ second, it is impossible for the plaintiff to prove ‘actual dilution’ for the injunction against the defendant who is about to use plaintiff's mark in a manner causing dilution. third, ‘anti-dilution’ shall be considered as a part of the shift of the trademark protection from ‘unfair competition’ to ‘property.’ fourth, to require a proof of ‘probability of dilution’ would be consistent with the burden of proof for the injunction against invasion of tangible property. Since the property value of the marks which are protected against dilution should be very high, the ‘famous mark’ requirement should be interpreted as removing ‘niche fame’ from the protected marks, and as including only those marks with ‘nation-wide fame.’ This article also suggested that only registered mark should be protected against dilution.