지적재산권 상호간의 경계획정의 원리와 권리충돌 해법의 모색


Review on the Demarcation Principle and the Solution of Conflicts between Intellectual Property Rights


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While copyrights, patents, designs and trademarks may individually protect a particular object, it is also possible that more than one of these forms of protection can be rendered to the same object. For example, an Applied Arts Design may be protected by several different forms of intellectual property rights. Historically, there had been such Demarcation Principles as Doctrine of Elections, Doctrine of Printed Matter, Doctrine of Functionality that drew a line between different protection forms of intellectual property rights. Especially Doctrine of Elections limited the creator of an intellectual works to only one form of protection but the Doctrine has been substantially abandoned and cumulative protection by the different intellectual property rights has been allowed in general and these Cumulative Protection Systems may cause much troubles and require resolution policy demarcating a line between intellectual property rights. One of the most difficult issues arising under these system is the copyrightability of useful articles(applied arts design) under the "separability standard" that is still an important demarcation principle. Another principle demarcating a line between intellectual property rights is a "doctrine of functionality" in respect of the competition policy, legal purpose of each intellectual property law and public domain problems for consideration. Thus, this article discusses these demarcation principles in order to avoid problems and conflicts under these dual protection systems. Furthermore, this article will analyze the provision for resolving conflicts between intellectual property rights, which is providing that prior rights holder's consent is prerequisite for the use of their registered rights afterwards. This conflict resolving system can be compared with EU legislative system which reject a trademark or design application from registration conflicting with prior copyright by another beforehand. With a comparative perspective, this article will examine the related provisions of ED. And finally this article will propose a workable method for the desirable directions of current system to be revised in the future for the solution of conflicts between Intellectual Property Rights.


I. 서설
  1. 문제의 제기
  2. 논의 범위
 II. 지적재산권 상호간 경계획정의 원리와 그변천과정
  1. 총설
  2. 전통적인 경계획정의 원리들
  3. 경계획정의 원리가 쇠퇴한 원인과 배경
 III. 지적재산 상호간 경계획정의 원리로서 기능성의 원리
  1. 기능성의 원리의 작용과 정책목적
  2. 기능성의 범주와 그 종류별 존부 판단기준
  3. 상표법상 기능성 판단기준 중 특허권이나 디자인권의 존부
  4. 심미적 기능성 (aesthetic functionality)과 중복보호의 배제
  5. 기능적 저작물의 보호범위 합체이론
 IV. 지적재산권 상호간 권리충돌 해법의 모색
  1. 현행 지적재산권법에서의 권리 충돌 조정 방식의 개요
  3. 현행법상 권리저촉 조정장치의 제도적 한계
  4. 저작권과 상표권 · 디자인권 충돌의 사전 억제적 해법모색
 V. 결론


  • 김원오 Kim, Wonoh. 숙명여자대학교 법대 교수


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