Earticle

초록

영어

The main function of trademarks is to identify the goods or services' sources and to distinguish them from others. In this sense, the question wheather a mark is qualified as a trademark wholly depends on the realities and practices of the business society. The boundary of trademarks has expanded along with the changes of the technical, economic and cultural climate in the society. All marks, however, are not to be automatically protected as trademarks: there must be a standard to distinguish a protectable marks from a non-desirable marks. For example, a product's trade dress becomes sufficiently distinctive to qualify for protection under the Lanham Act if it is either inherently distinctive or if it is acquires secondary meaning. Furthermore, to acquire a 'secondary meaning' in the minds of the buying public, for purpose of trade dress protection, an article of merchandise must proclaim its identification with its source, and not simply stimulate inquiry about it. An important doctrine, drawn from the common law, that serves as a limiting principle in trade dress cases is the doctrine of functionality. Although it now ha a statutory pedigree, by virtue of the 1998 Trademark Amendments, the doctrine of functionality has a long history in the common law of trademarks. According to the Supreme Court, in order for trademarks or trade dress to be protected under the Lanham Act, it mustnot be functional; moreover, the functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature. These general principles are largely undisputed, however, their application to the trade dress area is the subject of considerable debate. This article is dedicated to examine the requirement of distinctiveness and the doctrine of functionality in light of the American case law, which will serve as useful reference for future operation of the non- conventional trademarks in Korea. Doctrinal developments and legislative trends in the advanced countries also should be followed up.

목차

I. 서론
 II. 본질적인 식별력
  1. 식별력의 일반적인 개념
  2. 본질적 識別力(Distinctiveness)의 판단기준
  3. 본질적 식별력과 기능성과의 관계
  4. 상품자체의 모양(Product’s Design)과 포장(Packaging)
 III. 사용에 의한 식별력
  1. 총설
  2. 사용에 의한 식별력의 취득요건
 IV. 기능성이론
  1. 기능성의 의의
  2. 기능성의 종류와 정책목표
  3. 기능성과 식별력과의 관계
  4. 가능성의 존부에 관한 일반적인 판단기준
  5. 심미적 가능성 (Aesthetic Functionality)
  6. 비전통적 상표의 기능성 여부에 관한 판단사례
 V. 결어
 참고문헌
 Abstract

키워드

상표 식별력 기능성 이차적 의미 트레이드 드레스 trademark distinctiveness functionality meaning primary significance trade dress

저자

• 이경규 [ Lee, Kyungkyu | 숙명여자대학교 법학부 부교수. ]

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