상표권침해를 둘러싼 오픈마켓운영자의 법적 책임

Abstract

Unlike the situation in Europe where the thorny dispute between the Internet service providers and the high brand trade mark owners are brought in court, Korea isn't like the same situation. Due to the wide spread of Internet and its ease, trade mark infringement on Internet involve in more various parties than on the offline world. Players around trademark infringement and counterfeit goods on the Internet shall include trade mark owner, distributer or seller(i.e. a contractor with Internet service provider, especially open market service provider including mobile open market service provider), Internet Service Provider(ISP) and the end-users(i.e. buyer on Internet auction sites and/or online shopping malls such as G-market, eBay) and the like. However the problem here is that from the beginning, the role of intermediary including Internet service provider in this regard is not considered surrounding the intellectual property's legal norms. Each of these parties has different perception towards the consequences of trade mark infringement that positively or negatively charge it, may also understand that the various stakeholders that surround counterfeit exist. On the other hand, the undeniable fact is that due to trademark infringement its owner, especially luxury goods brand owners have an enormous amount of loss. Consequently, someone or jointly of the above-mentioned parties shall have to pay for it, in spite of the dilemma each stakeholder faces with, which is not necessarily reconcilable. The ultimate purpose of this paper is to find out an appropriate solution with regards the liability of Internet service provider, especially open market service provider including mobile open market service provider on trade mark infringement through the analysis of the case law related to this issue in Korea and legal comparative study between Europe et. al and Korea. Therefore, this article deal with trade mark infringement taking place on Internet from the perspective of Internet service provider, especially open market service provider including mobile open market service provider and analyses the scope of its liability in a comparative style between Europe et. al and Korea. Finally in this paper following questions shall be obtained a solution to a problem. In other words, to what scope and extent of its monitoring obligations should an Open market service provider (including Mobile open market service provider) carry the burden of policing the use of trade mark offered on its services? How shall it be fully guaranteed that the legal obligation?