상표공존 합의제도 도입과 그 파급효과에 대한 연구

Abstract

As of June 2023, Korea has not introduced trademark coexistence agreement system, but it is currently under discussion to revise the Korean Trademark Act for its introduction to Korea. Accordingly, this Article discusses the introduction of the trademark coexistence agreement system to Korea and its ripple effect on the Korean legal community. In this paper, it is argued that the trademark coexistence ‘agreement’ system should be used instead of the trademark coexistence ‘consent’ system. As far as the discussion on the introduction of the trademark coexistence agreement system to Korea is concerned, the meaning of the trademark coexistence agreement system, the current development in the Korean law related to trademark coexistence agreement system, and foreign legislations are examined. In this context, this Article indicates that there are many cases in which disputes have been resolved through trademark coexistence contracts even though the trademark coexistence agreement system has not been introduced to Korea. When the trademark coexistence agreement system to Korea is introduced, four issues need to be examined with its effect on the Korean legal community. At the outset, the necessity to transplant it into Korea needs to be discussed. Even if a dispute is resolved through a trademark coexistence agreement contract, the risk of recurrence of the dispute exists in that a later coexisting trademark is used outside the scope of the contract. The Article needs to explore the need to introduce it to Korea the despite the risk of recurrence of the dispute. Second, it discusses the protection of consumers interests and the possibility of misunderstanding or confusion of the sources. It examines the public and private perspectives on the trademark coexistence agreement system and delves into the issues as to whether it is necessary to explore the possibility of misunderstanding or confusion of the sources. In this regard, two situations that may occur in considering the possibility of misunderstanding or confusion of consumers are reviewed: a coexistence agreement contract for the same trademark and the same product, and a coexistence agreement contract for well-known and famous trademarks. Third, the Article analyzes cases where it is difficult to maintain a trademark coexistence agreement, such as the ones where there are mistakes in declaring intention of the contracting parties, and where a trademark coexistence agreement is concluded for unlawful purposes. Finally, it makes a proposal to display trademarks with which the contracting parties have agreed on trademark coexistence through a website that can show the administrative status of trademarks, such as KIPRIS, so that third parties can identify the legal status of trademarks easily.