Earticle

초록

영어

Some of the most important and disputed issues in contemporary trademark law can be traced back to its historical development. For instance, the current disagreement over the objectives of trademark protection has its parallel in the history of conflicting claims for trademark protection from different interest groups centuries ago. A useful place to start the exploration of today's controversy over the objectives of trademark law is look at the original purpose of trademark users. Now we set the purpose of trademark users as the function of trademark. Indeed, all the functions of trademark is not originated from the purpose of trademark users, but that is derived from this and the use of trademark. The original function of trademark is distinctiveness of goods, and the trademark must be distinctive if it is to serve the function of identifying of goods and thereby avoid confusion, deception, or mistake. Historically, trademarks originated as devices to identify in the marketplace the craftspeople responsible for producing goods for sale. Statutes dating back as early as the thirteen century show that this was eventually recognized as having social consequence and economic importance. It seems that these statutes were meant to protect the public by preventing the sale of unidentified goods whose quality could not be ascertained. But it was not just the public nor the individual manufacturer who valued trademarks. Today, trademark law allows the buyer to assert a preference in his or her purchasing, allows the manufacturer to promote its product, and serves to assure a certain level of quality. This means that trademarks serve as a assurance to quality. We recognize these functions that distinguish the source of goods and assure a certain level of quality as a first derived functions. Trademarks provide a marketing advantage and the functions of trademark thrives in every ways. Nowadays, trademark serves as a property, a media of information communication, advertising and competitive material. Furthermore, trademark has a cultural meaning. And we consider these as a secondary derived functions of trademark As trademarks thrive their functions, they conflict with other intellectual property. For example, the application of the concept or doctrine of functionality as applied in trade dress cases shows the expansion of trademark's territory.

목차

I. 처음에
  1. 상표란
  2. 상표의 기능 역할
  3. 상표의 변천
 II. 일반론으로서의 상표의 기능
  1. 식별기능으로서의 상표
  2. 출처표시기능으로서의 상표
  3. 수요자 보호 기능으로서의 상표
  4. 품질보증기능으로서의 상표
  5. 정보전달기능으로서의 상표
  6. 문화로서의 상표
  7. 재산적 기능으로서의 상표
  8. 경쟁적 기능으로서의 상표
 III. 상표기능의 분류
  1. 국내 학자들의 분류
  2. 일본 학자들의 분류
  3. 사견
 IV. 상표기능의 변화
  1. 영역확대
  2. 타법과의 충돌
  3. 중복보호
 V. 상표기능에 대한 종래의 학설과 새로운 접근
  1. 상표 가능론의 의의
  2. 상표의 새로운 기능
 VI. 끝으로
 참고문헌
 Abstract

키워드

상표 상표의 기능 식별력 광고선전기능 문화로서의 상표 출처표시기능 품질보증기능 trademark the function of trademark distinctiveness communicational function trademark as a culture

저자

• 윤선희 [ Yun, Sunhee | 한양대학교 법과대학 교수 ]

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