저명상표 희석범죄 판단기준에 대한 소고
A Study on the Judgment Criteria for the Trademark Dilution of Famous Marks
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The trademark dilution of famous marks as a kind of unfair competition practice is defined and regulated in Article 2 (1) (c) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the Unfair Competition Prevention Act), which was newly established according to the amendment of the Act on February 3, 2001. Famous trademarks are universally protected in all around the world, which are likewise protected in the Republic of Korea by the Unfair Competition Prevention Actin line with such international trends. In order to establish the trademark dilution of famous marks, it is necessary to have the following characteristics: (1) high reputation of the original mark, (2) use of identical or similar markscompared to the original mark, (3) occurrence of blurring of discrimination or tarnishment of reputation; in particular, with respect to the degree of proof of 'blurring of discrimination or tarnishment of reputation', which is a constituent requirement of the trademark dilution of famous marks, it is reasonable to interpret the trademark dilution as concrete endangerment offense, neither harm-based offense nor abstract endangerment offense, and thus it should be considered that the crime is established if a specific realistic risk of blurring of discrimination or tarnishment of reputation occurs. Furthermore, in relation to the specific criteria of 'blurring of discrimination or tarnishment of reputation', it is necessary to comprehensively judge the degree of individual behavior in specific matters as a normative factor as well as the psychosocial viewpoint of the general public.
Abstract
The trademark dilution of famous marks as a kind of unfair competition practice is defined and regulated in Article 2 (1) (c) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the Unfair Competition Prevention Act), which was newly established according to the amendment of the Act on February 3, 2001. Famous trademarks are universally protected in all around the world, which are likewise protected in the Republic of Korea by the Unfair Competition Prevention Actin line with such international trends. In order to establish the trademark dilution of famous marks, it is necessary to have the following characteristics: (1) high reputation of the original mark, (2) use of identical or similar markscompared to the original mark, (3) occurrence of blurring of discrimination or tarnishment of reputation; in particular, with respect to the degree of proof of 'blurring of discrimination or tarnishment of reputation', which is a constituent requirement of the trademark dilution of famous marks, it is reasonable to interpret the trademark dilution as concrete endangerment offense, neither harm-based offense nor abstract endangerment offense, and thus it should be considered that the crime is established if a specific realistic risk of blurring of discrimination or tarnishment of reputation occurs. Furthermore, in relation to the specific criteria of 'blurring of discrimination or tarnishment of reputation', it is necessary to comprehensively judge the degree of individual behavior in specific matters as a normative factor as well as the psychosocial viewpoint of the general public.
참고문헌 (15)
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