등록 후 사용에 의해 비로소 식별력을 취득한 상표의 법적취급 - 하자치유의 인정과 무효심판 청구 제한의 필요성을 중심으로-


Legal position of the trademark acquired distinctiveness by its use after registration


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In case, the trademark having no distinctiveness at the time of decision whether to register and finally acquired a degree of distinctiveness(secondary meaning) required by Article 6, paragraph 2, after registration by using in the course of litigation, how such a registered trademark should be treated legally?The position of the Supreme Court is uncertain. Mainstream of Cases are in the position that such a registered trademark should be invalidated by trial. However, this position needs to be reviewed in a new perspectives, and by the Supreme Court case law in the opposite position. This paper is to review and claim the possibility of a correction of defects of the trademark registration even though it has a reason of invalidation at the time of decision to resister. First, invalidating the registered trademark and refiling it again cause too much discomfort to the trademark owner and is against in a economic perspective. As well as there is no merits to claim invalidation trial in fact because it still can be protected by the Unfair Competition Prevention Law. Furthermore, it meets the counter-interpretation of Article 5 paragraph 1 of Article 71 of the Trademark Act, providing that the loss of distinctiveness after registrations is to be the reason of invalidation. First of all, considering the nature of the animated feature of distinctiveness, sticking to the strict registration framework is contrary to the reality of commerce and mislead consumers into confusion that can lead to serious distortions and unfair competition causing result contrary to the purpose of the trademark law. This argument also can be supported by changing the perspective regarding the time of judgment to find and by adopting the concept of time acquiring secondary meaning. The time of judgment whether a trademark acquired secondary meaning needs not to be kept by the time of its registration, but could be by the time of trial decision or by the time of final judgement of a court according to the step of litigations. What's more important is the fact that the applicant must establish the time of acquiring secondary meaning of the mark concerned.


I. 서설
  1. 제6조 제2항을 둘러싼 그간의 주요 쟁점
  2. 문제의 제기 및 논의의 범위
 Ⅱ. 무효설과 하자치유설의 기본적 입장에 대한 검토
  1. 무효설의 입장
  2. 하자치유설의 입장
  3. 판례의 태도
 Ⅲ. 하자치유설 입장을 취한 판결에 대한 검토
  1. 동 판결의 구체적 논거에 대한 검토와 비판
  2. 검토와 정리
 Ⅳ. 새로운 관점에서의 무효설에 대한 비판적 접근
  1. 총설
  2. 사실상 무효심판청구 실익의 부재
  3. ‘사용에 의한 식별력 취득’의 법적 성격과 위상 검토
  4. ‘판단시점’과 ‘식별력 취득시점’ 개념의 재정립을 통한 논쟁의 해소
  5. 상표법과 부정경쟁방지법의 역할 분담의 한계와 통일적 적용의 필요성
 Ⅴ. 결론
  1. 하자치유와 효력인정의 타당성
  2. 판단시점에 대한 열린 태도
  3. 2차적 의미 취득의 의의에 대한 명확한 이해
  4. 입법론적 해결이나 보강이 요청되는 사항


  • 김원오 Won-oh, Kim. 인하대 법학전문대학원 교수.


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