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영어

World-wide litigations between the two companies of the most prestigious smart-phones makers, Apple v. Samsung, have attracted international attentions. The decisions delivered by the courts, however, are not fully consistent, those of the U.S. and the Korean Courts being on the two extreme sides. One of the main differences is regarding the protection of trade dress about smart-phones and tablet PC's. Trade dress can be protected within the system of the intellectual property law in Korea as well as in the United States. In the U.S. it can be protected as design patents and/or Federal Trademark Law irrespective of the registration of the marks, while in Korea it can be subject matter of Design Protection Act, Trademark Act and the Unfair Competition Act. For the trade dress with acknowledged distinctiveness, they can be protected as registered and/or unregistered trademarks in the U.S. while they can be protected either as registered trademark under the trademark law or well-known sign under the unfair-competition law. Doctrine of functionality which is well established and consistently applied to restrict the scope of trademark is hard to be found to the cases on the trade dress. The doctrine does critical role to determine the boundary of the scopes of patent and trade mark, so the introduction of the doctrine and the application should be affirmatively considered. The confusion of trademark generally has been interpreted to mean point-of-sale confusion while post-sale confusion has not been expressly acknowledged in Korea. The ultimate goal of the trademark protection is the good-will of the merchants. Since the good-will of the merchants can also be damaged by the post-sale confusion not only by the point-of-sale confusion, the post-sale confusion should be considered affirmatively. In the U.S., anti-dilution provisions are applied without discrimination to the registered as well as unregistered trademarks; the provisions are applied only to the unregistered well-known signs so the registered trademarks are immune to the application of anti-dilution provisions.