Earticle

초록

영어

A scent mark is introduced in 2011 as the result of Korea-U.S. Free Trade Agreement. Before 2011, only visual signs could be protected as trademarks under Korean Trademark Law and 2011 amendment extends protection to non-visual marks. In the U.S., Lanham Act does not stipulate clearly the protection of a scent mark, but since TTAB admitted protection of the scent mark in Clarke, scent has been recognized as a mark to be protected under Lanham Act. Also E.U. regulation describes protection of a mark which can be represented graphically and ostensibly a scent mark may be expressed graphically. Even though a scent mark is included into protected marks legislatively, a scent mark must be recognizable objectively to satisfy some requirements for registration. First of all, it must be described or represented graphically. Under Korean and U.S. law, a scent mark has to be described and a specimen must be submitted. However, in E.U., Office for Harmonization in the Internal Market denies the possibility of graphical expression on a scent mark. Thereby, a scent mark cannot be protected in E.U. Even in Korea and the U.S., other obstacles bar protection of a scent mark: distinctiveness and functionality. A scent mark is hard to be inherently distinctive and usually acquires secondary meaning by use. However, there is possibility that the use of a scent mark makes the mark itself functional. Therefore, in the U.S. since 1990, a scent mark has been registerable, but very few scent marks are actually registered. Moreover, considering a complicated process and nature that scent is detected by a human being, a scent mark may not be proper to be protected as a trademark. However, protection of a scent mark is already resolved legislatively and then, it is not a proper time to discuss validity of a scent mark. Under the current situation, it is advisable that methods to register and protect a scent mark must be researched more thoroughly and until completion of the research, registration or protection of a scent mark need to be restrained.

목차

I. 서론
 II. 냄새상표의 상표법에 의한 포용
  1. 상표의 범위
  2. 서면기술
 III. 냄새상표에 관한 등록기관과 사법부의 입장
  1. 냄새상표 등록의 문제점
  2. 냄새상표에 대한 법적 판단
 IV. 냄새상표의 식별력, 기능성과 상표권 침해
  1. 식별력
  2. 기능성
  3. 상표권 침해
 V. 냄새상표의 미래- 그 보호의 적격성
  1. 냄새와 인간의 인식
  2. 상표보호의 목적
 VI. 결론
 참고문헌
 

키워드

냄새 식별력 기능성 등록 혼동가능성 서면기술 진동이론 scent distinctiveness registration likelihood of confusion description requirement vibration theory

저자

• 육소영 [ Soyoung Yook | 충남대학교 법학전문대학원 교수 ]

참고문헌

발행기관

간행물