산업재산권 [Journal of Industrial Property]

간행물 정보
  • 자료유형
  • 발행기관
    한국지식재산학회 [Korea Intellectual Property Society]
  • ISSN
  • 간기
  • 수록기간
  • 등재여부
    KCI 등재
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 340
제34호 (10건)

‘Intellectual property’ 용어의 동아시아(한국, 일본, 중국)에서의 법적수용

윤권순, 이승현, 윤종민

한국지식재산학회 산업재산권 제34호 2011.04 pp.1-55

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This article studies on the Legal adaptation of the term ‘intellectual property’ in East Asia such as Korea, Japan and Chinese. This article also evaluates the corresponding terms and considers the roles they do and adequacy of them. The term "intellectual property" refers to the rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. The economic and cultural importance of this concept and term are increasing rapidly. Locke's theory that the fruit of his own labour should belong to the individual was extended in the 18th century to intellectual product. Locke's theory had justified to consider intellectual product as property rights. The term has been widespread since establishment of the World “Intellectual Property” Organization (WIPO) in 1967. The debate over whether liability rules or property rules are preferable for intellectual property has extended to the term itself. There are some critics that "Intellectual property" is a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in creative activity are increasingly being granted in the form of liability rights rather than property rights. Some suggests that intellectual liability is more proper term than intellectual property. Instead of the term 'intellectual property', the new term 'knowledge property' has been used in China and South Korea. The term 'intellectual property' is more proper than 'knowledge property' in respect of justify intellectual product as a property because the word 'intellectual' indicate intellectual labour and activity. The term 'intellectual property' has also advantage to include music and arts as subject matter because it indicate intellectual activity. On the other hands the term 'knowledge property' well reflect the importance of knowledge as the term knowledge-based economy. The dynamism and complexity of the term 'intellectual property' has a semantic dimension. The time has comes to consider an accurate term for the legal right for the results of intellectual activity.



특허침해소송에 있어서 선사용과 공연실시의 항변


한국지식재산학회 산업재산권 제34호 2011.04 pp.57-94

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Even a first inventor, i.e. an inventor who first devised an invention, infringes the patent right of another if he/she works the invention after the patent has been applied for. In contrast, if the first inventor was preparing to work the invention, or worked the invention, before the patent was applied for, the first inventor is entitled to a free nonexclusive license as an exception to the enforcement of the patent right. The prior use system, under which the free nonexclusive licenses are granted, is being used as one measure by which a first developer, who did not file a patent application, can be protected against an attack from a patentee. The first inventor can claim a prior use right if he/she was developing business in order to work his/her invention or has worked his/her invention. If the invention was in a state in which it could be publicly known while the first inventor was preparing to work the invention or was working the invention, it is more appropriate to argue for the invalidation of the patent right by asserting that the patented invention was publicly used rather than claiming the prior use right. This is because the argument based on the prior use right only grants a free nonexclusive license to one who infringes on a patent right, whereas the argument for the invalidation of the patent right allows completely unrestricted working of the invention in the future since the patent right can be invalidated. This research focused on the legal procedures that a person who has prepared to conduct business or who has conducted business in order to work an invention, acquired from a first inventor or another inventor, should take in order to prepare an argument based on prior use or public use. In addition, the evidences and facts that need be proved will be analyzed in light of precedents by comparing the two types of argument with each other. Based on such analysis and comparison, schemes for utilizing the prior use system and the public use system, which Korean companies can use in order to actively cope with patent disputes, will be proposed.



권리 대 권리의 소극적 권리범위확인심판청구의 적법성에 대한 검토


한국지식재산학회 산업재산권 제34호 2011.04 pp.95-122

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Trials to confirm the scope of patents are the trials that a patentee, an exclusive licensee or an interested person demands to confirm whether the scope of a patent right includes an invention that is being carried out or is going to be carried out. Passive trials to confirm the scope of patents are to confirm that an invention does not fall in the scope of a patent. This article investigates the development of passive trials between patents and highlights the problems included in the cases in dealing with those trials. In addition this article tries to suggest solutions to the problems and propose amendment of Korean Patent Act. Decisions by the Korean Supreme Court on passive trials to confirm the scope of patents can be summarized as follows: ① Trial to confirm the scope of a patent against another patent is illegitimate in principle. ② Passive trial to confirm the scope of patents is legitimate because even though such trial is admitted, it does not result in invalidation of another patent. ③ Passive trial to confirm the scope of patents is legitimate because the claimant has risked the possibility of his patent to be invalidated. ④ The court can make a decision that denies the validity of the clamant's patent in a passive trial to confirm the scope of patents These judgements of the Supreme Court show that there are too many legitimate cases among trials to confirm the scope of a patent against another patent to rule that such trials are illegitimate 'basically'. According to the Supreme Court, all trials to confirm that a patent does not fall in the scope of another patent are legitimate. Examination of the development of the cases of the Supreme Court reveals that these recent cases do not harmonize with the early cases. Because atest decisions of the Supreme Court have become to be different from those of earlier ones, it is needed to clarify the definition of 'trials to confirm the scope of patents' and the legitimacy of passive trials between patents.



디자인보호법상 디자인 무심사등록제도의 실효성 확보방안에 관한 실증적 연구

이상만, 정태호

한국지식재산학회 산업재산권 제34호 2011.04 pp.123-168

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A design application for non-substantive examination is granted registration if it meets the formal requirements for filing a design application and conforms to public order. Twelve years have passed since the non-substantive examination for design application came into force in 1998, in some parts of which the examination system has improved from then. The system, however, has still have some problems with the increase of the target items and securing the effectiveness in its enforcement. This study examines the issues of the increasing or decreasing the target items and how to secure the effectiveness of non-substantive examination for design application, for which purpose the advantages and disadvantages were analyzed in substantive and design's non-substantive examination system, outlining the statistical materials on non-substantive examination of design. The method on how to secure the effectiveness was drawn in this study, in which the various issues were examined which included 1.amount restriction of target design 2.the opposition period and the increase of social cost 3.examination request for non-substantive examination application 4.exclusive rights for non-substantive examination registration 5.restriction of multiple design application. A survey was carried out for securing the effectiveness of non-substantive examination, in which examiners in charge of design examination and trial,and patent attorneys answered. On the issue of the increase of target design,the survey shows the target design for non-substantive examination should be expanded due to the increase of numbers in non-substantive examination application, references shortage and short life-cycle of design. The study explains as follows with regard to the method for securing the effectiveness of non-substantive examination in design registration, First, in the issue of request of design examination; allowing the prescribed design application for non-substantive examination to request substantive eamination if the applicant wants; thus, the stable design right can be secured. Second, the survey shows the exclusive right of design through non-substantive examination should be kept only in case that the application has been registered and maintained by examiner's decision from the right owner's request of substantive examination; thus, the stable right can be secured and dispute over the unstable right will be reduced. Third, the design application now in enforcement is limited to 20 designs in multiple application. Increasing the number of design up to 100 is needed; thus, it helps applicant to settle the inconvenience and reduce the cost, which is in accord to the multiple application system. Design, which is recognized as one of 21C's most important factors for strengthening competitiveness, needs the registration system by non-substantive examination due to design's characteristics of the rapid change of trend and its short life-cycle. Registration through non-substantive examination, however, causes some problems including unstable right and high social cost thereto. Therefore,further concrete measures including some shown in the survey should be prepared for securing the effectiveness.



비전형상표 도입에 관한 법적 고찰


한국지식재산학회 산업재산권 제34호 2011.04 pp.169-218

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The trademark is typically any character(s), figure(s), sign(s) or three-dimensional shape(s), or any combination thereof to indicate the source of the goods in commerce. Also there are non-traditional trademarks which do not fall into the standard categories, such as those based on color, smell,or sound and the like. This paper has 2 parts to analyze how the non-traditional trademarks can meet the protection requirements as the trademark and how the possible legal problems can be solved when the new trademarks are introduced. The former can be comprehended by describing the existing protection situations of U.S., EU, Japan, and South Korea. And the latter has 4 assignments to work out like this. The first is that 2008 Korean trademark bill for partial amendments(2008.10.13) asks the non-traditional mark to satisfy with the 'graphic representation' condition for registration. It focuses on those of smell marks and sound marks. The second is that the specific commercial features of non-traditional trademarks can make up the 'distinctiveness' condition. Smell marks also need to fulfill the condition. And it analyzes the possibility of re-introduction of the disclaimer on non-distinctive parts, which is an announcement by the trademark holder who does not have exclusive right for the use of any portion of that mark. The third is about functionality theory. The existing trademark prescribes color mark and its related functionality. This paper challenges the legal interpretation on color mark functionality of Trademark manual of Korean patent office, and analyzes a case(the Korean Patent Court 2001.3.30). The final considers whether a design which has been protected by the design law could be protected by trademark registration. And it gets a conclusion that the trademarked design is to be protected as a trademark under stepped-up functionality condition.



권리불요구제도 - 미국과 영국의 권리불요구제도의 검토를 포함하여


한국지식재산학회 산업재산권 제34호 2011.04 pp.219-251

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According to the concept of a trademark, very few visible elements can be a trademark and favored elements by customers are limited among them. In contrast, because the attitude to a trademark influences purchase of product,select of a trademark is critical to an applicant of trademark registration. Customers feel friendly toward familiar expression used in daily conversation,but such expression is impossible to be registered as a trademark due to its non-distinctiveness. However, considering correlation between a trademark and product sales, applicants may try to include familiar expression into a trademark and that increases a composite trademark. A composite trademark can be registered even though it contains a non-distinctive element if it is distinctive as a whole. For this composite mark, only distinctive part can be given trademark right, but the public mistakenly consider its whole parts to have trademark right. Disclaimer makes the extent of trademark right clear and helps a user to use the trademark without any fear of infringement. However, regardless of this merit, very few countries such as the U.S., U.K. etc adopt the disclaimer in their trademark systems and even these countries do not actively use the disclaimer. The reason to adopt the disclaimer is that they have a first-to-use system but the U.K. even has the provision to limit trademark right subsequent to registration. In Korea, the disclaimer was adopted in 1949, subsequently deleted and was discussed to be readopted in 2009. It was not adopted as a law at that time, but there is strong possibility to be re-discussed in the future. Under Korean trademark system, a first-to-file system, the disclaimer can be a way to overcome demerits of a first-to-file system. However, fundamental issues surrounding disclaimer in a first-to-file system are still in question. The disclaimer and the limit of trademark right under section 51 have the same result-limiting the extent of trademark right. Thus, if the issue of demarcating trademark right can be resolved properly in amending section 51, in my opinion, there is no need to introduce disclaimer into Korean trademark law.



키워드(keyword) 광고의 상표법적, 경쟁법적 문제 - 유럽에서의 논의를 중심으로 -


한국지식재산학회 산업재산권 제34호 2011.04 pp.253-297

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Über wenige Themen wurde im Markenrecht in den vergangenen Jahren so intensiv diskutiert wie über die Zulässigkeit der Nutzung fremder Marken als Keywords. Nicht weniger als fünf oberste Gerichte europäischer Staaten haben den EuGH um Vorabentscheidungen zu dieser Problematik ersucht. Mittlerweile hat der Gerichtshof vier dieser Fälle entschieden. Google hat also einen Sieg errungen, der sich aber möglicherweise als Pyrrhussieg erweist. Indem der EuGH eine Gefährdung der Herkunftsfunktion nicht generell verneint, sondern durchaus als möglich angesehen hat, hat er den nationalen Gerichten in den Mitgliedstaaten die Wahlmöglichkeit zwischen restriktiven und liberalen Lösungen belassen. Keyword-Advertising mit fremden Marken ist wettbewerbsrechtlich unbedenklich. Diese Werbeform ist ein zulässiges Bemühen um potenzielle Kunden eines Wettbewerbers und überschreitet nicht die von der Rechtsprechung für ein wettbewerbswidriges Abfangen aufgestellten Grenzen. Der Markeninhaber wird durch das Wettbewerbsrecht nicht vor Konkurrenz geschützt. Da durch das Keyword-Advertising mit fremden Marken die Wahrnehmung des Angebots des Markeninhabers nicht erschwert, sondern lediglich daneben eine zusätzliche Alternative für den Verbraucher eröffnet wird, werden keine schützenswerten Interessen des Markeninhabers beeinträchtigt. Mangels Anknüpfung an den guten Ruf eines Konkurrenzproduktes sind die Voraussetzungen einer wettbewerbswidrigen Rufausbeutung nicht gegeben.



통합저작권관리번호의 필요성에 관한 법적 연구


한국지식재산학회 산업재산권 제34호 2011.04 pp.299-334

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In order to protect the creators of art and culture such as writers and performers, collective management of copyright association effectively enforce the copyrights and distribute royalty transparently. Especially the importance of protecting intellectual property of works distributed in digital media is emphasized. Fair compensation for the authors will aid their work of creation through the fair legal system. In this paper, I suggest solution not only to facilitate the distribution of royalty but also to reduce illegal download problem. Chapter Ⅱ demonstrate the illegal download problem, Chapter Ⅲreview current status and problems in the management of the distribution of copyright royalty, Chapter Ⅳ suggest ICN(integrate copyright number)system to solve these problems. If the distribution of digital content using ICN is effective, copyright owners will identify the number of works. This system will helps not only reduce copyright infringement but also increase the royalty of copyright owners.



퍼블리시티권의 사후존속


한국지식재산학회 산업재산권 제34호 2011.04 pp.335-366

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Although our society did not recognize seriously the issue of posthumous continuance of publicity rights, it will soon critical for us to have some fixed regulations or any kind of authorized guidelines against future disputes regarding the publicity rights of deceased celebrities. However, it is not so simple to regulate the status of publicity rights in such case. The concept of publicity rights was created first in the United States. As it was stemmed from privacy rights, the concept contains various personal nature in itself. Notwithstanding this personal nature, the creators of publicity rights tried to consider the publicity rights as a pure property right, completely eliminating the personal nature from itself. Critical problem of publicity rights as absolute property rights is shown in case that the right owners of privacy rights and publicity rights are severed,especially when the right is inherited after the celebrity died. We cannot find any theoretical reasons that the publicity rights (apparently containing privacy rights) shall survive the death of that person. The publicity rights fails to have the personal nature, the most important core contents of itself, when that person dies. Some scholars suggest that copyright laws shall be applied to the relationships regarding the publicity rights. But copyrights and publicity rights are totally different from their origins, natures or legitimate purposes. Anyway, we have to respect the present needs for the publicity rights in the relevant commercial market, which is the sole reason of existence of publicity rights. We need to minimize the effective period or methods of use of publicity rights while we recognize its posthumous continuance. For this purpose, I suggest a license concept to substitute publicity rights in the above relationships, with regard to the right to use a celebrity's portrait or name. This "publicity license" will solve the most conflicts as above. It will continue to protect the personal nature of celebrities, providing the proper methods to commercially use the celebrity's portraits or names. We shall be more conservative to admit the concept of publicity rights to our legal system, considering the sufficient protection of personal nature.



지식기반시대와 비실시기업의 진화


한국지식재산학회 산업재산권 제34호 2011.04 pp.367-407

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Knowledge economy now governs every aspect of our lives. Knowledge is the basic currency of this knowledge economy. Equipped with exclusive rights, intellectual properties (IP) are now destined to play the crucial role in this knowledge economy. In this respect, non-practicing entities (NPEs) are deemed to be the legitimate players of this new economy. The 1st-generation NPEs are characterized as entities independent of the manufacturers, hereas the 2nd-generation NPEs and defensive NPEs (i.e., patent aggregators) are heavily influenced by the manufactures, for the manufacturers now play the role of the investors or members of the NPEs. NPEs are here to stay!Despite the resistance form the IT industry in the US, the Senate has recently passed the bill which is essentially benign to the NPEs. In addition, Chief Judge Rader of the Court of Appeals of the Federal Circuit has recently declared that his Court will judge the patents not by the nature of the patent holders but by their quality. In every respect, there is no sign that the rights of the patentees are to be significantly eroded in the near future. It then is manifest that this country as a whole should jump onto the wagon and strive to efficiently generate IP, to protect IP in the major industrial countries, and to utilize IP to its full value.


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