상표위조행위에 대한 법정손해배상제도의 도입 검토


Review on the Introduction of Statutory Damages System against Trademark Counterfeiting


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Recently KORUS FTA including the Clause that "Each Party shall ... in cases of trademark counterfeiting, establish or maintain pre-established damages..." has been concluded at the end. Therefore, Korea should amend trademark laws to allow courts to award significant statutory (or “pre-established”) damages against counterfeiters. This article aims to review on the desirable statutory damages system that should be introduced into the Korean trademark law as an implementation action of KORUS FTA. This article firstly studies a statutory damages in general by comparing it with a lost-profit damages and punitive damages. Further, this article is to address issues concerning the principle requirements for the statutory damages system and proper amount by analyzing the rules and regulations of other countries each other including Lanham Act and Anticybersquatting Consumer Protection Act. Under the KORUS FTA and the American rules and regulations, a statutory damages is to be sought only to the counterfeiting of the registered trademark in use. Therefore, it is firstly required to define "trademark counterfeiting" distinguishing from the general trademark infringement. Further, trademark owners may elect statutory damages, at any time before final judgment is rendered by the trial court in recognition of situations where it is difficult for the trademark owners to prove their measurable monetary damage. It is also notable that there is some exceptions, which does not include any mark used on or in connection with goods or services of which the manufacture or producer was, at the time of the manufacture or production in question authorized to use the mark. In order to introduce it into Korean trademark law system properly, the above issues are discussed or examined and proposed a desirable directions for the revision of the Korean trademark law.


Ⅰ. 한ㆍ미 FTA협정과 법정손해배상제도
  1. 법정손해배상제도(Statutory damages) 의의
  2. 협정문상 법정손해배상제도 합의 문구
  3. 상표법상 법정손해배상제도 도입을 위한 검토
 Ⅱ. 법정손해배상제도 관련 주요국의 입법례
  1. 미국의 법정손해배상제도(Statutory Damages)
  2. 기타 제 외국의 입법례
  3. 소결
 Ⅲ. 법정손해배상제도 도입을 위한 입법안의검토(결론)
  1. 적용대상을 상표위조행위에 국한
  2. 적용예외 ; 불사용 상표와 제조당시의 적법성여부
  3. 법정손해배상액의 상하한 결정
  4. 기타 입법시 고려사항
  5. 상표법 개정안에 관한 검토


  • 김원오 Kim, Won-oh. 인하대 법대 교수


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