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
제38호 (9건)

우리법상 영업비밀보호에 관한 비교론적 고찰


한국지식재산학회 산업재산권 제38호 2012.08 pp.1-54

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This article tried to capture the specific characteristics of trade secret having recently emerging importance, which were easily overlooked when prior researchers stick only to trade secret itself, by the comparative analysis with patent and other intellectual property protection, etc. Before that, the requirement of independent economic value plus utility seems meaningless repetition in the definition of trade secrets and it is inappropriate for Korean statute to nominate How To Sell as one of only two examples for trade secrets. At first when doing comparative analysis, it is essential to understand that finding an equilibrium between the two protection system, trade secret as technology information and patent is always needed because those are closely related. Then, every issue including novelty and doctrine of equivalents which could arguably be common points should be carefully compared while legislative, executive, and judicial branch shall figure out what will be the problem in which trade secret and patent are related inextricably to each other, as illustrated in this article. The technology information among trade secrets obtained at office will revert to the employee under the Invention Promotion Act though the other part among trade secrets (management information) will probably be taken out by the employer. Finally, it seems premature to establish so-called the Trade Secret Act separated from the current Unfair Competition Prevention Act and the analysis through comparison even with copyrights shed a light on a way to go for an appropriate trade secret protection system in Korea.



지식재산권 관련 부당이득 분쟁에 대한 쟁점별 고찰

조경희, 박규용

한국지식재산학회 산업재산권 제38호 2012.08 pp.55-90

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There is no provision about the unjust enrichment in the intellectual property law. But the unjust enrichment principles in the Civil Law are also applicable to the intellectual property cases for balancing the unfairs in the property changes, when the intellectual property right is deemed as a person's property and when the person enriched gets any profit and it causes any damage to the intellectual property owner. This paper discusses the issues of the unjust enrichment on the intellectual property rights with the Civil Law principles. In other words, for the beginning it illustrates the principles of the Civil Law, and then it researches how the principles be applied to the intellectual property rights cases. Firstly, it considers the unjust enrichment with the classification(the giving unjust enrichment and the infringing unjust enrichment), and the usefulness of that. The usefulness is that there is no need to distinguish good or bad faith of the person enriched because the repayment amount under the giving unjust enrichment is already decided by its expressed legal relationship. While the repayment amount under the infringing unjust enrichment is different from the enriched person's good or bad faith. Secondly, it considers the burden proof of no legal ground with the classification again. There is no argument under the giving unjust enrichment that the plaintiff has the burden of proof. While there are arguments under the infringing unjust enrichment on the claims for reimbursement. The both reach a conclusion that the person enriched has the burden of proof. However, it inclines to the opinion that the no legal ground is deemed as the defendant counter-argument at the actual cases. Thirdly, with regard to the illustration problems between the article 201 and the article 748 about the repayment amount, it analyzes the legal nature of the fruits acquirement rights of a good faith person, the relationship between the fruits acquirement rights and the remaining enrichment. The result is that, when the invalid patentee deemed the registered patent as his rights and got the royalty through the license contract, the legal principles of fruits acquirement rights should be applied to such royalty. Fourthly, it analyzes the relationship between the tort claims for the damages and the unjust enrichment claims for the repayments. The related cases are almost about the infringing unjust enrichment. And the two claims coincide when the cases are on the proof of the deliberation(or the mistake) or on the extinctive prescription. Under these circumstances, there is no reason to distinguish the two claim's repayment because the claims for the unjust enrichment and the claims of tort are the same. Finally, in the conclusion of this paper, it gets the intellectual property cases into shape with the unjust enrichment principles of the Civil Law.



국제특허분류(IPC)의 융복합성 분석과 심사·심판에의 활용방안에 관한 연구


한국지식재산학회 산업재산권 제38호 2012.08 pp.91-130

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As the fusion between technologies has been accelerated, the boundary between industries has become blurred, new products have rapidly come to the market, and a huge amount of patent documents are annually published. As with Korea, more than 170,000 patents are annually filed, and as patents filed overseas being considered, its amounts could be beyond our imagination. Thus, a research on the fusion between technologies, which is described in patent documents, is really important. The object of this research is to establish a new concept of technologies-convergence and integration in the patent field and to analyze the extent where technologies are integrated and converged within the International Patent Classification. First, the research has focused on establishing a concept related to technologies-convergence and integration in the patent field. Second, the research has analyzed the extent where technologies are integrated and converged within the International Patent Classification, based on a specified code of International Patent Classification. The research has established a concept of technologies-convergence and integration and suggested a methodology for measuring the extent where technologies are integrated and converged of four technology fields in the International Patent Classification. Firstly, unlike previous researches, which explained the phenomenon of convergence and integration academically, the research is significant in establishing a concept of technologies-convergence and integration in the patent field. The research is very important in analyzing the extent where technologies are integrated and converged on the sub-group of the IPC. In order to analyze how much each technology of the IPC code is converged and integrated, the research has suggested a way to discern between a code for technologies-convergence and integration(in progress) and a code for non-integration and non-convergence, through various indexes measuring the extent where technologies are integrated and converged, by using common classification analysis utilizing main classification/sub classification of patent documents. The research shows the results as such; first, by selecting a proper index representing the extent where technologies are integrated and converged, the IPC can be classified into 3 types for each technology, such as a code for technologies-integration and convergence(finished), a code for a code for technologies-convergence and integration(in progress), a code for non-integration and non-convergence. As for a code for technologies-integration and convergence(finished) and a code for a code for technologies-convergence and integration(in progress), through the research results, the extent where technologies are integrated and converged of each technology can be recognized. Moreover, through the ratio of the total number of codes to a code for technologies-integration and convergence(finished), the rate of integration and convergence(%) of the IPC can be also measured.



디자인 보호제도의 현황과 발전을 위한 제언


한국지식재산학회 산업재산권 제38호 2012.08 pp.131-178

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Design Protection in Korea began from 1908. But how many and what kinds of designs were protected by that Decree is not well known. After World War Ⅱ, we adopted the design-patent system like US. In 1961 sui generis Design Act was legislated and registered designs were protected. In 1987 applied art was exampled as copyrightable work, whereas the 1957 Act only protected the hand-craft. Even though copyright act was revised, the court ruled as before. That is applied art can be protected only in exceptional cases. After the supreme court's judgement Design Act was amended and adopted the Non-Substantive Examination System (NSES). But in 2000 the copyright act was amended and pronounced expressly that design is protected by copyright law on the condition that it can be identified separately from, and are capable of existing independently of the article. In 2004 the shape of article began to be protected by Unfair Competition Prevention Act. There exist 3 main acts to protect the design. This paper studies how those acts apply to the 7 kinds of designs: those are Textile Design, Fashion Design, Type face Design, Editorial Design, Screen Display Design, Package Design, Graphic Character Design. After surveying practices in the KIPO and cases in the courts this paper points out the problems and suggests what to be revised for the improvements. Those are as follows:1) In the area of design protection act, it is more preferable to abolish the dual system and the Non-Substantive Examination System be expanded extensively to cover the all the classes of products. 2) In the area of copyright act, the definition of applied arts must be revised. The definition of U.S. copyright act is a good example. 3) In the area of unfair competition prevention act, the requirements to be protected by that law need to be reconsidered, and that provision should not be the barrier to free competition. In future it is preferable that all acts would be combined into one act and the subject matter and the requirements to be protected by that law must be prescribed expressly.



개정 상표법의 주요 문제점들에 대한 고찰


한국지식재산학회 산업재산권 제38호 2012.08 pp.179-224

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In accordance with the KORUS FTA(Korea-US Free Trade Agreement), the Trademark law were revised considerably. The revised Trademark law were effective as of March 15, 2012. The main issues of the amended law are protection of non-visual marks, the system of confirming intent to use a trademark and Statutory Damages. Firstly, even if sound or smell marks are non-visual, if they may be expressed visually by using signs, letters, devices or any other methods, they can be protected according to the revised trademark law. However, several problems regarding non-visual marks became to appear at the revised Trademark law and the Standards for Trademark Examination. Secondly, The revised Trademark law has accepted the system of confirming intent to use a trademark. Accordingly, a person who wishes to register a trademark shall use or intend to use his mark in the Republic of Korea. At present, even under the Korean trademark system based on the principle of registration, unless a person uses or intends to use a trademark in the Republic of Korea, he is not entitled to register trademarks by the revised Trademark law Art.3. However, several problems regarding the system of confirming intent to use a trademark became to be exposed at the Standards for Trademark Examination. Thirdly, in damage compensation suits, if it was difficult to prove the actual damages or estimate the amount of damages, substantive protection of a trademark owner was very difficult. But, according to the revised Trademark law, a trademark owner may claim damages of up to 50 million Korean Won, even if he or she cannot prove the damages clearly. In this case, the provision only statesthat the amount of statutory damages will be determined by the court. However, the provision lacks definite standards of determination in suit practice. Therefore, this paper is discussing on the above several problems and presenting the solutions on them.



저작물의 보호범위에 관한 고찰


한국지식재산학회 산업재산권 제38호 2012.08 pp.225-260

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All the copyright works can be separated the parts of which all people can make use from the parts which the author’s copyright is protected, this is what they call the theory of idea/expression dichotomy. This theory has become the standard to judge the protectible scope of the copyright works all around the world. With regard to application of idea/expression dichotomy, the determination of similar materials need to precede that of a protectable subject matter. One of the most important work in the judgment of copyright infringement is how similar the original works. There is not any rules for the standard to define substantial similarity, but it depends on only precedents and principles. The meaning of substantial similarity is uncertain and abstract in the law, substantial similarity test in the copyright law is one of the requirements in judging copyright infringement.



저작권 침해판단을 위한 제도적 방안 연구

전정화, 권태복

한국지식재산학회 산업재산권 제38호 2012.08 pp.261-300

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It is not too much to say that most of problems generating under copyright law relates to copyright infringement. Although copyright infringement problem is most substantial and fundamental part of copyright law, relief way through remedy other than suit is obscure state if copyright infringement problem would be generated, it is not easy to decide on copyright infringement before suit, and it is difficult to decide or estimate infringement in aspect of general person. It is determined to be the earnest time thoroughly facing limit and problem like this and systemizing legal mechanism for improving them. Accordingly necessity of copyright infringement decision specialized agency being able to give reliability being similar to judgement of Court or of similar level thereof will be strongly raised. The copyright decision specialized agency shares copyright infringement decision exclusively charging in suit with specialized agency and can do educational effect and active action on general person by preparing estimation ability to action making copyright infringement, and reliabillty and creditability of decision agency can be strengthen as inducing consistent judgement through accumulation of long-period decision standard.



저작권법상 컴퓨터프로그램의 상호운용성에 관한 소고


한국지식재산학회 산업재산권 제38호 2012.08 pp.301-346

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The term ‘reverse engineering’ in the study herein indicates the behavior and process of apprehending the principle of development and of extracting the varied information, inclusive of the ideas and functional concepts at the computer program employed, by analyzing and investigating computer program in the form of object code through the disassembly and decompilation (of program codes particularly under the Korean copyright law), black box analysis with memory dump included, and manual analysis. Reverse engineering of a computer program, customarily carried out in the related industries, has served for interoperability of an independently created computer program with other programs, error correction, and program improvement, etc, so that it could contribute to fostering industrial development and associated computer program technologies. Whilst it took a considerable amount of time and money for the computer program development, the analysis by way of reverse engineering requires relatively less time and money to be undertaken, which seems to pose challenges on enterprises that develop a computer program. Therefore, they have tried to prevent reverse engineering by the copyright law and the contract. And as the reproduction and translation may take place in the disassembly and decompilation process, the subparagraph 34 of article 2 of the copyright law defined the act of decompilation of program codes as reproduction and translation, and so the article 101-4 permitted reverse engineering by restricting the author’s property right concerning the reproduction and translation. According to the subparagraph 34 of article 2, the decompilation of program codes is allowed solely for the purpose of obtaining the information necessary to achieve interoperability (compatibility under copyright law). In this article, two of the points in controversy relating to decompilation of program codes are that the term ‘interoperability’ should be substituted for the term ‘compatibility’ and how copyright law and monopoly regulation and fair trade act are applied to acts of computer program users or computer program authors in order to ensure the interoperability of computer programs. Therefore, this study looks further into both the meaning of compatibility and interoperability and the interpretations on compatibility and their problems in copyright law, and then into the scope of information required for interoperability, the need of reverse engineering required to gain information for interoperability coupled with its limitations and possible restrictions to be imposed upon under the monopoly regulation and fair trade act.



SNS상에서 일반인 아이덴티티(identity)의 퍼블리시티권 보호에 관한 연구 - 미국에서의 논의를 중심으로


한국지식재산학회 산업재산권 제38호 2012.08 pp.347-402

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Distinctive technical attributes of Social Network Services (SNS) enables users to introduce and advertise themselves by publicly displaying their identity. This allows other users to obtain personal informations directly from whom they want and even from their friends. On the other hand, SNS face challenges in protecting and controlling the personal information and identity of users as it is increasingly common for the information to be leaked, distributed or collected without consent. This study, therefore, proposes to investigate the appropriate legal protection policy for the personal information and identity publicly displayed in SNS environments. SNS users explicitly express their desires for self-expression of personal information and identity' by creating personal profiles and by updating their information displayed on these profiles. This could result in the interpretation that the users waived their reasonable expectation of privacy, hence this study hardly expects that the law of privacy to be applied to protect the personal information and identity of SNS users. Therefore, it is necessary to consider how the law of publicity rights could be applied to this matter. The important issue is the commercial use of an individual's name or likeness on SNS without the user's consent. In 2011, Fraley, et al., users of Facebook, sued the company, alleging that its "Sponsored Stories" feature, which displays ads on Facebook containing the names and pictures of users who have "Liked" a product, violates California's Right of Publicity statute. Facebook argued that its actions fall within the §3344(d) "newsworthiness"exemption for which consent is not required, and that, in any event, plaintiffs consented to the use of their identities and failed to allege sufficient injury under §3344(a). The court ruled that Facebook's publication of the plaintiffs' "Likes" was for commercial advertising purposes, which removes them from the scope of §3344(d)‘s privilege. To the second issue about the consent, the court determined that whether Facebook's Terms of Use gave the defendant the right to use the plaintiffs' identities in the form of Sponsored Story advertisements remains a disputed question of fact and is not proper grounds for dismissal at this time. Lastly, the court found the plaintiffs' allegations of provable commercial value sufficient to survive a motion to dismiss. The court granted in part and denied in part the defendant's motion to dismiss and the plaintiff could proceed with the suit continuously. This case shows the broad implications for the right of publicity in the world of social media. The concept of the right of publicity has not been settled in Korea. However, the number of cases related to the right of publicity are increasing continuously. Each state in the USA has developed its own way of protecting the right of publicity. Examining their statutes would be helpful to deal with the issues about the right of publicity in Korea. It is still controversial whether non-celebrity identity holds commercial value and whether an individual has any necessity to protect his or her identity under the right of publicity. However, we need continued discussion and considerations about these issues to further develop this theory as the right of publicity becomes increasingly relevant to our daily life.


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