제품의 형태와 색채 모방행위와 부정경쟁행위에 대한 소고 - 비아그라 판결과 세레타이드 판결을 중심으로 -

Abstract

In this article, Article 2 paragraph 1, subparagraph (a), (c) and (j) of the Unfair Competition Act were to be reviewed. Re Article 2 paragraph 1, subparagraph (a)(the Confusion clause), the customers as a standard observer of the likelihood of confusion have to be the doctors and pharmacists including but without limitation to the patients and their relatives. In Viagra case(2015), Korean Supreme Court decided that the standard observers of the likelihood of confusion are to be limited to the doctors and pharmacist because the drugs to be discussed are the special drugs not the general drugs. However that sort of understanding is not the right way in terms of the he likelihood of confusion when the special drug is concerned. Re Article 2 paragraph 1, subparagraph (c)(the Dilution clause), the well-known to the general public requirement has to be decided after the relevant market is to be defined in the very first place. In Viagra and Seretide case92016), the general public in that requirement is to be understood as the whole Koreans in its wordings by the Korean Supreme Court. But that is the wrong standard in reading the general public either the case law or the black letter law. Especially where the tarnishment matters, the general public has to the customer of the relevant market. In the Seretide case, those customers in the relevant market would be the patient plus the doctors and pharmacist not the general public as a whole. Re Article 2 paragraph 1, subparagraph (j), in Seretide case the Seoul High Court decided that lack of similarity would make no merit under the Article 2 paragraph 1, subparagraph (j). However considering the legislation history, the context of the subparagraph (j) in relation to the other subparagraph of the Article 2 paragraph 1 of the Unfair Competition Act and so forth, this approach has to be reconsidered. This point was discussed only in the case of Seretide not in the Viagra case. Finally Functionality Doctrine works as a negative rule in the case of Trade Dress protection. Case laws in the Viagra case and the Seretide case will be marked as referenced of their own.