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초록

영어

In accordance with the KORUS FTA(Korea-US Free Trade Agreement), the Trademark law were revised considerably. The revised Trademark law were effective as of March 15, 2012. The main issues of the amended law are protection of non-visual marks, the system of confirming intent to use a trademark and Statutory Damages. Firstly, even if sound or smell marks are non-visual, if they may be expressed visually by using signs, letters, devices or any other methods, they can be protected according to the revised trademark law. However, several problems regarding non-visual marks became to appear at the revised Trademark law and the Standards for Trademark Examination. Secondly, The revised Trademark law has accepted the system of confirming intent to use a trademark. Accordingly, a person who wishes to register a trademark shall use or intend to use his mark in the Republic of Korea. At present, even under the Korean trademark system based on the principle of registration, unless a person uses or intends to use a trademark in the Republic of Korea, he is not entitled to register trademarks by the revised Trademark law Art.3. However, several problems regarding the system of confirming intent to use a trademark became to be exposed at the Standards for Trademark Examination. Thirdly, in damage compensation suits, if it was difficult to prove the actual damages or estimate the amount of damages, substantive protection of a trademark owner was very difficult. But, according to the revised Trademark law, a trademark owner may claim damages of up to 50 million Korean Won, even if he or she cannot prove the damages clearly. In this case, the provision only statesthat the amount of statutory damages will be determined by the court. However, the provision lacks definite standards of determination in suit practice. Therefore, this paper is discussing on the above several problems and presenting the solutions on them.

목차

Ⅰ. 서론
 Ⅱ. 소리, 냄새 등과 같은 비시각적 상표에 관한 문제점의 검토
  1. 상표법 제6조 제2항에 제6조 제1항 제7호의 명문화 필요
  2. 사용에 의한 식별력의 획일적인 적용의 재검토 필요
  3. 유사판단기준의 명확한 정립 필요
  4. 기타 비시각적인 상표의 인정에 관한 명문화 필요
 Ⅲ. 사용의사확인제도에 관한 문제의 검토
  1. 관련 규정의 내용
  2. 문제점들의 구체적인 검토
 Ⅳ. 법정손해배상제도에 관한 검토
  1. 관련 규정의 내용
  2. 법정손해배상액의 단위로서의 객체적 기준의 설정 필요
  3. 손해배상액의 하한선 설정 및 악의적인 침해행위시 상한선의 상향 조정의 필요
  4. 청구의 변경을 규정상 명시하고 있는 것의 삭제 필요
 Ⅴ. 결론
 참고문헌
 

키워드

개정 상표법 상표심사기준 한미 FTA 비시각적인 상표 상표사용의사 법정손해배상 the revised Trademark law the Standards for Trademark Examination KORUS FTA non-visual marks intent to use a trademark Statutory damages.

저자

• 정태호 [ Jung, Tae-Ho | 원광대학교 법학전문대학원 조교수. ]

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