부정경쟁방지법상 트레이드 드레스 보호제도 고찰 - 중국과 한국의 보호법제 비교를 중심으로-

Abstract

China and Korea protect trade dress under Trademark Act and Unfair Competition Prevention Act. Specifically, this paper is to study and compare detail provisions of protecting trade dress under Unfair Competition Prevention Act in China and Korea, and review whether Korea’s Unfair Competition Prevention Act provides complete protection to trade dress from the point of subject matter. Article 2 and 5(2) of China’s Unfair Competition Prevention Act are similar to Article 2(1)(j) and (a) of Korea’s Unfair Competition Prevention Act, however, there are differences, for example, in the scope of protection for famous marks and the presence of provisions relating to functionality between the two Acts. Further, there are no such provisions in China’s Unfair Competition Prevention Act as prohibiting copies of goods’ shape in Article 2(1)(i) of Korea’s Unfair Competition Prevention Act. To sum up, the subject matter of Korea’s Unfair Competition Prevention Act is binary structure, that is, protection of goods’ shape is provided under Article 2(1)(a) and (i), while others are protected under Article 2(1)(j). Therefore, it is suggested to stipulate misleading and/or confusion to sources of trade dress as a kind of unfair competitions under Korea’s Unfair Competition Prevention Act in order to promote legal stability.