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초록

영어

A trademark or trade mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities The Trade Mark Act (TMA) establishes a fundamental system of protection based on registration rather than use, while for protection under the UCPA the existence of a secondary meaning and actual likelihood of confusion is required. Trade mark rights do not, therefore, arise merely through the use of a trade mark, regardless of how well-known the mark may be. On the other hand, it is evident that system of first use adopted in other countries For example, the United States of America, the Philippines, Indonesia and all countries with a legal system based on the traditional British model..has had some influence on the Trade Mark Act. For example, according to Sec. 2 TMA, which requires distinctiveness as a requirement for registration, even a trade mark which is not distinct (and thus not registrable) may be registered provided the mark has become well-known among consumers by use and has consequently acquired "secondary meaning", Sec. 6(2). The TMA categorizes the following kinds of marks as lacking distinctiveness (Sec. 6(1)): - Generic or common names for the product; - Descriptive mark; - Conspicuous geographical names; - Common surnames or titles and - Simple or common marks. - Mark devoid of any distinctive chracter A trade mark acquires secondary meaning when, over time, consumers have grown to recognis ethe mark as identifying a particular company products. However, in such case, evidence verifying such use and notoriety should be submitted at the time of filing. In assessing whether a trade mark acquires secondary meaning, the grounds under Section(1) 1-7(taken together with Section 6(2)) should be justified on the basis of 'Freihaltebedurfnis'.

목차

I. 사건의 개요
 II. 판결의 요지
 III. 상표의 식별력
  1. 자타상품의 식별력
  2. 기술적(記述的) 표장
  3. 기타 상품의 식별력이 없는 상표
  4. 사용에 의한 식별력의 취득
 참고문헌
 Abstract

키워드

식별력 자유사용의 필요성 서비스표 기술적 용어 우리은행 distinctiveness Freihaltebedü rfnis service mark descriptive mark Woori Bank

저자

• 김병일 [ Kim, Byungil | 한양대학교 법과대학 부교수 ]

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