Earticle

초록

영어

The topic of this article is the referential use of a trademark by defendants who repackaged or rebottled plaintiffs’ genuine products. The issue is whether such a use constitutes trademark infringement, specially under the anti-dilution provisions. To find the answer to the issue, Part Ⅱ of this article examines ‘Prestonettes case,’ which shows clear contrast between the two theories of trademark protection; tort- based one for consumer protection and property-based one for the protection of trademark holder. In Part Ⅲ, it is discussed whether a referential use of a trademark can survive the anti-dilution protection in Korea. And this article concludes the followings: First, according to tort-based theory for the trademark protection, a referential use is not even within the exclusivity of a trademark right. On the other hand, according to property-based theory, a referential use comes within the exclusivity of the right and it can be allowed only if there is no likelihood of harm to consumers. Second, under the U.S. protection of a famous trademark against dilution, a referential use is not an infringement of a trademark right, not because it is a non-commercial use, but because of a policy reason that balances the protection of property right and free speech interests. Third, Korea Supreme Court also sees a referential use as lying outside of the right of a registered trademark. It held that a referential use is not a ‘trademark use’ under the Trademark Act. Fourth, a referential use should be interpreted as surviving the anti-dilution provision of Korea Unfair Competition Prevention Act because it is a nontrademark use. And the exemption is based on the ‘fair business practices,’ not on its non-commercial nature.

목차

Ⅰ. 서론
 Ⅱ. Prestonettes, Inc. v. Coty 사건
  1. 사건의 개요
  2. 연방대법원과 연방항소법원의 판결이유의 이론적 근거
  3. 혼동가능성의 방지
  4. 희석행위의 금지와 ‘설명적 사용’의 허용
 Ⅲ. 한국의 대법원 판례
  1. SONY 리모콘 사건
  2. 에어클리너 사건
  3. 미국 연방대법원 판결과의 비교
 Ⅳ. 부정경쟁방지법 위반의 희석행위가 ‘상표적사용’에 한정되는가의 여부
 Ⅴ. 결론
 참고문헌
 ABSTRACT

키워드

설명적 사용 부수적 사용 상표 희석화 재포장 용기변경 referential use collateral use trademark dilution repackaging rebottling

저자

• 박준우 [ Park, Ju-Nu | 서강대학교 법학전문대학원 부교수. 법학박사. ]

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