Earticle

초록

영어

In the above-referenced case, the Korean Supreme Court ruled en banc that the determination as to whether or not a mark has gained distinctiveness should be made as of the time when the mark is examined in a trial for confirmation of its scope (a “Scope Confirmation Trial”), as opposed to as of the time of the mark’s examination for registration. In reaching its decision, the Court took into consideration that the existence and the strength of the distinctiveness of a mark—which is a factor in determining the similarity in marks—are relative to other marks. Accordingly, despite that the subject mark had causes for invalidation, the Court validated the trademark by assessing the mark’s distinctiveness as of the time of the Scope Confirmation Trial. The distinctiveness of a mark is only one of many factors considered in determining the similarity in marks; and, as such, there is no legal basis to validate a mark that is otherwise clearly subject to invalidation on grounds of the mark’s distinctiveness gained over time. However, by validating a trademark as of the time of a Scope Confirmation Trial despite that such mark was clearly subject to invalidation, the Court appears to have gone beyond the long-held principle in the Korean trademark system which recognizes the first-to-file rule and confines the scope of the trademark protection to what is described in the trademark application. The Court’s decision, therefore, deserves an in-depth discussion.

목차

I. 사실의 개요
  1. 이 사건 등록상표와 확인대상상표
  2. 이 사건의 진행경과
 Ⅱ. 대상판결의 판시 등
  1. 다수의견
  2. 반대의견
  3. 대상판결에 의하여 변경된 판결-대법원 2007. 12. 13. 선고 2005후728 판결
 Ⅲ. 대상판결의 해설
  1. 들어가며
  2. 권리범위확인 사건에서의 등록상표의 무효 여부 판단
  3. 등록무효사유를 가지는 상표의 사용에 의한 식별력 취득
  4. 맺으며
 참고문헌
 

키워드

저자

• 박정희 [ Park, Jung-Hi | 법무법인(유한) 태평양 변호사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346