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
제23호 (20건)



산업기술의 유출방지 및 보호에 관한 법률과 쟁점

김민배, 김경준

한국지식재산학회 산업재산권 제23호 2007.08 pp.1-36

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Todays, the precious technologies are being flowed out through M&A, license contracts, spying etc. other countries are trying to prevent these behaviors with regulations on technology transfer. However we cannot tell south korea is pretty good at preventing against spying technologies. we all know that it's essencial to protect new technologies and develop security systems. under this circumstances, south korea legislated 'The law regarding the outflow prevention and a protection of industrial technology'which is in effect from a date of enforcement. However, studying this ACT, we can easily predict some legal problems about the way of it's enforcement and relations to the related laws and regulations This thesis is going to study the circumstances spying technologies and expected problems, then suggest useful advices.



영업비밀보호법의 適用上 限界


한국지식재산학회 산업재산권 제23호 2007.08 pp.37-61

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In the 21st century, the so called digital revolution era, the competitive power of companies and nations depend on how well they have developed and used advanced scientific technology. Consequently, in recent years many countries in the world are trying hard to acquire the newest high technology beforehand and protect their advanced scientific technology from leaking to other countries. Adapting to such change, our nation has continuously developed the Trade Secret Protection System to effectively cope with the new international competition environment which resulted from the ending of cold war and to be prepared for free competition market influenced by WTO. However, despite our country's effort, when the law is put in to effect, it becomes difficult to achieve the goal of the system which focuses on preventing any infringement of trade secrets. For example, if someone attempted but failed to steal trade secrets, it is very difficult to find evidence of the attempted crime. Also, even after the secrets have been drained out, the protection system would be of no use as the secrets would be no longer secrets. In the case of punishing those who've been confirmed to attempt the crime, it is likely that they will be given a lighter punishment than that for theft. Thus, substantially the system doesn't work for the beholders of the trade secrets but works against them. Therefore, it is most urgent to amend Unfair Competition Prevention & Trade Secret Protection Act and related laws that actually reflect the current state. In addition, companies should not forbid their employees from transferring to another company, prohibit them of competitive transaction, or force them to make a secret oath. Rather, if the company considers the damage from having their trade secret leak to be so fatal, they can grant their employees with duties to keep trade secrets through an official contract. By signing the official contract, the employees will be obliged to keep the company's trade secrets, and be compensated for doing so. Currently, our nation faces a challenge of obtaining advanced technologies from forefront nations and preventing underdeveloped countries or rival countries from stealing our technologies. Only the companies and countries that survive in this intense competition will be able to move forward to a promising future. Therefore, we should concentrate on gathering the utmost support and wisdom to develope and protect our advanced technologies with a positive attitude, and this will only be possible when our nation, companies, and the people cooperate devotedly as one.



「산업기술 유출 방지 및 보호에 관한 법률」 운용시 예상되는 몇 가지 문제점


한국지식재산학회 산업재산권 제23호 2007.08 pp.63-89

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This study is devoted to the some critical comments on the Act about the technology leak prevention and industrial technology protection and support in Korea. The Objective of this Act is as follows ; Industrial espionage such as smuggling industrial technology to foreign countries is pervasive in Korea. The current Unfair Competition Prevention and Business Secret Protection Act and the other close to this Act or regulations, contrary to our expectations, have not paved the way for the progress in prevention of technology leaks. Thus, the purpose of this Act is (ⅰ) to prevent leaked information of core technologies which could pose a threat to national security; (ⅱ) to protect core industrial technologies by establishing a legal framework to prevent them from being leaked and strengthening a sense of security; (ⅲ) to enhance the industrial competitiveness of our country by protecting and supporting science/ industrial technicians, researchers and developers; and (ⅳ) to guarantee national security and stabilize our economy. I criticise this Act from theoretical and practical points of view. Theoretically, many invalid and vogue terms are provided in this Act, e.g. national security, national economics, core technology. Man can not find the exact criterium of these terms to make an application to the concrete cases. Practically, I am afraid of the bureaucratism in the sphere of industrial administration. Even though the purpose of this Act has the proper basis, the progress of technology is very fast and does not wait for the time, but the industrial administration does not back the technology environment up in the business. To my opinion, there are many Acts in connection with industrial espionage in Korea. Before the Enactment of this Act, the Korean Government had to let the lawyer or the law-professor research the relation with the other Acts or regualtions.



영업비밀의 보호 : 부정경쟁방지및영업비밀보호에관한법률 제2조 제3호 라.목을 중심으로


한국지식재산학회 산업재산권 제23호 2007.08 pp.91-130

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In Korea, The recent amendment to the Unfair Competition Prevention and Business Secret Protection Law, which became effective 21 July 2004, has redoubled its efforts against industrial espionage. However, in spite of the Korean government's such efforts to revise the relevant laws and regulation for the effective enforcement on the industrial spies, is not yet sufficent to protect the holder´s civil rights of business(trade) secret and to formulate the workable standard to fit all criminal protection against economic espionage. And recently the Industrial Technology Outflow Prevention and Protection Law, which became effective 28 April 2007, was be established in September. 2006. The purpose of this articles is to explain especially the Unfair Competition Prevention and Business Secret Protection Law §3ⅲ and reviews legal confliction of employer and the employee regarding a secret maintenance duty of the business in the labor contract, including the case which does not have the clear contract regulation or the clear labor contract regarding a secret maintenance obligation and the case which business secret infrigement occurs after retiring of the employee. This articles suggests some methods with the principle of legal balance between the holder´s rights of business(trade) secret and the profit of the employee as the secret maintenance obligatory person (including the employee after retiring, considering the freedom of occupation selection at the constitutional law), and the profit of the competitive dealers to solve the confliction fundamentally.



「산업기술유출방지 및 보호에 관한 법률」상 기술유출규제를 둘러싼 논점 : 영업비밀보호법상 기술유출규제와 관련하여


한국지식재산학회 산업재산권 제23호 2007.08 pp.131-163

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The importance of industrial technoloy is growing in knowledge based economy of 21C. However, also Industrial technology outflow is overflowing. Industrial technology outflow has been regulated by Unfair competition and Business secret protection Law. Industrial technology outflow prevention and protection Law was established in September.2006 and has become effective since April.2007. Therefore, the present, Industrial technology outflow has been regulated by two major laws. But two major laws can overlap each other about a certain case. From this point of view, this study focuses on The problems occurred in law regulation on Industrial technology outflow action, will grope improvement methods. And it covers four main themes. Enactment history and significance of Industrial technology outflow prevention and protection Law; Relation between Unfair competition and Business secret protection Law and Industrial technology outflow prevention and protection Law; Scope of Industrial technology outflow prevention and protection Law; specific Industrial technology outflow action on Industrial technology outflow prevention and protection Law.




民事訴訟法的 觀點에 입각한 特許法의 재조명 및 제언


한국지식재산학회 산업재산권 제23호 2007.08 pp.165-222

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Korean Patent Act was adopted in 1946. Afterwards, it has been amended more than 30 times. It contains many procedural provisions because it deals with proceedings related to patent filing, claim or other procedures. Hence, the current version of Korean Patent Act, amended in April 2007, need to be delved into by proceduralists. In light of their viewpoints, several procedure-related stipulations of the present Korean Patent Act need to be amended. This Article will explore procedural provisions that need to be revised or reviewed. They are as follows: (ⅰ ) Capacity of Minors etc. (Patent Act(hereinafter "Act") Article 3); (ⅱ) Associations etc. Other Than a legal Entity (Act Article 4); (ⅲ) Independence of Representation (Act Article 9); (ⅳ) Replacement of Agents etc. (Act Article 10); (ⅴ) Mutatis Mutandis Application of the Civil Procedure Act (Act Article 12); (ⅵ) Succession of Procedural Effects (Act Article 18); (ⅶ) Request for a Resumption (Act Article 22); (ⅷ) The Title of Execution on Amount of Compensation and Remuneration (Act Article 125bis); (ⅸ) Submission of Documents (Act Article 132); (ⅹ) Submission of a Response etc. (Act Article 147); (ⅹⅰ) Request for Exclusion (Act Article 149); (ⅹⅱ) Recusal of a Trial Examiner (Act Article 150); (ⅹⅲ) Indication of Grounds for Exclusion or Recusal (Act Article 151); (ⅹⅳ) Combination or Separation of a Trial or Ruling (Act Article 160); (ⅹⅴ) Withdrawal of a Request for a Trial (Act Article 161); (ⅹⅵ) Ruling on a Trial (Act Article 162); (ⅹⅶ) Title of Execution of Costs or Remuneration (Act Article 166); (ⅹⅷ) Request for a Retrial (Act Article 178); and (ⅹⅸ) Request for a Retrial on Account of Collusion (Article 179). Afterwards, several proposals will be made to improve the procedural provisions of the Act.



Hybrid License


한국지식재산학회 산업재산권 제23호 2007.08 pp.223-240

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Hybrid License is generally recognized as a form of license involving patent right, granted or under the filing, with other intellectual property rights which are not coextensive with patent thereof. As Hybrid License is widely practiced in the licensing business worldwide, it has been subject of legal research and analysis by the court in the United States. In the landmark case of Brulotte, the U.S. Supreme Court has decided that continued obligation of royalty payment provision after patent expiration to be per se unenforceable. Although the Brulotte case is still recognized to be the law today, there has been obvious tension between the Brulotte rule and the law of patent validity as stipulated by the Court of Appeals for the Federal Circuit. Therefore, it is required for practitioners in the related business to carefully review the law and case decisions for considering whether royalty payment provision in the Hybrid License is properly allowed in its legal contour or not. In this paper, it is designed to review theoretical background of Hybrid License and major case decisions by the court in the United States and to discuss the possibility of applicability in terms of practical aspects, wherein various court decisions by the Federal Circuit and the Supreme Court are reviewed and Analyzed. Finally, suggestions to licensing practice based upon above analysis are provided to test applicability of Hybrid License issues and resolutions.



저작권법상 범죄의 비친고죄화에 대한 형사법적 검토


한국지식재산학회 산업재산권 제23호 2007.08 pp.241-275

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Das Urheberrecht schutzt den Urheber in seinen geistigen und personlichen Beziehungen zum Werk und in der Nutzung des Werkes. Historisch ist das Bedurfnis zu einem wirksamen Urheberschutz als Reaktion auf die Erfindung des Buchdrucks im Jahr 1450 zu sehen. Das Urheberrecht reagiert auf die wirtschaftlichen Veranderungen und ganz allgemein die gesellschaftlichen Folgen, die sich aufgrund technologischer Vervielfaltigungsbedingungen ergeben. Wer in seinen Urheberrechten verletzt wird, kann den Verletzter nach § 123 koreanisches UrhG zum einen auf Unterlassung in Anspruch nehmen und die Beseitigung verletzender Exemplare verlangen. Daruber hinaus ist die Verletzung fremder Urheberrechte auch strafrechtlich sanktioniert (§§ 136~142 koreanisches UrhG). Die Strafvorschriften des koreanischen UrhG sind mehr und mehr in den Blickpunkt nicht nur von Fachleuten, sondern auch einer interessierten Offentlichkeit geruckt. Das liegt vor allem daran, dass es dem kriminellen Rechtsbrecher wegen der sich standig verbessernden technischen Moglichkeiten immer leichter fallt, Ueheberrechte in großem Stil zu verletzen und erhebliche Gewinne zu erzielen. In den Fallen der unerlaubten Verwertung urheberrechtlich geschutzter Werke wird die Tat grundsatzlich nur auf Antrag verfolgt. Handelt es sich um ein Antragsdelikt, so setzt die Befugnis des Verletzten zur Erhebung der Klage voraus, dass er selbst oder ein fur befugten Handelnden rechtzeitig und wirksam einen Strafantrag gestellt hat. Aufgrund des AndG 2006 (Nr. 8101) vergroßt sich der Anwendungsbereich des Offizialdelikt. Mit der Einfuhrung wirkungsvollerer Instrumente zur Verfolgung und Ahndung von Rechtsverletzungen verfolgt das AndG das Ziel einer generellen Starkung der Schutzrechte des geistigen Eigentums. Dem besonders gefahrlichen und schadigenden Verhalten des gewerbsmaßigen kriminellen Rechtsbrechers tragt der Offizialdelikt Rechnung.




발명의 동일성 : 실질적 동일성과 종ㆍ속관계 발명의 동일성을 중심으로


한국지식재산학회 산업재산권 제23호 2007.08 pp.277-312

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The criteria for the identity of inventions are critical for the assessment of novelty, inventive step, and the priority of inventions. Identity of inventions is determined by comparing the restrictive elements of inventions at hand. No difference between the elements of the inventions is interpreted as the identity of the inventions. Where the difference is estimated to be non-substantial, however, two inventions can also be declared to be substantially identical. A species invention can also be identical to a genus invention, which results into a well-known maxim: a species anticipates a genus. This paper critically addresses the criteria for the identity of two inventions, with focus on the notion of substantial identity and identity between genus- and species-inventions. The maxim, “a species anticipates a genus”, seems to have been deduced from the well-known principle: “That which infringes, if later, would anticipate, if earlier.” The principle, however, was coined before the notion of inventive step was developed apart from novelty requirement. Now with the notion of inventive step, something infringes, if later, dose not always anticipate, if earlier. Furthermore, identity of inventions must be determined by the criterion whether the invention as an idea exists within the public domain. A species-invention itself does not always fully represent a genus-invention. Therefore the generally accepted notion of identity for the species- and genus-inventions does not seem to be plausible anymore. The notion of substantial identity for the assessment of novelty is not compatible with the notion of inventive step. It should be discarded and substituted by the notion of inventive step. Substantial identity for the assessment of priority of inventions should also be abandoned, for this does not have a firm legal basis. In the long term, however, test of inventive step is preferred during the assessment of priority of inventions, with accompanying amendment of the Patent Act.



특허권의 공유에 관한 비교법적고찰 및 실무상 유의점


한국지식재산학회 산업재산권 제23호 2007.08 pp.313-348

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This article relates to comparative study of co-ownership of patent right and matters to be attended to. With progress of high technology, companies which claim to stand for selection and concentration are increasing rapidly. With stressing the necessity of cooperation between university and industry, co-ownership of patent rights resulted from co-researches are also increasing. However, as to the patent law related with co-ownership of patent right, it has not been changed a lot regardless of big change in industrial environment since 1961 when the Korean patent law set the provisions of co-ownership of patent right for the first time. As to interpretation of the related clauses, it is thought not many studies has been done. It is checked on this article whether the clauses related with co-ownership of patent right in current patent law are correspond with the purpose of patent law which is seeking to encourage, protect and utilize inventions, thereby improving and developing technology, and to contribute to the development of industry.



공동연구계약의 특허 관련 규정에 관한 연구


한국지식재산학회 산업재산권 제23호 2007.08 pp.349-394

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As the need of cost sharing and risk sharing in research activities of new technology increases, the need for a joint research also increases. However, a joint research has many demerits as well, such as disclosure of technical informations and complex decision-making mechanism. Each party must pay special attention on drafting a well-considered joint research agreement (JSR). Especially a successful joint research inevitably gives birth to an invention. The invention and relevant patent-related rights may bring out many complex legal disputes. Therefore a good JSR must in advance address such possibilities of legal disputes. This paper introduces general concepts of a JSR and then tries to explain typical provisions of a JSR. Especially this paper focuses on patent-related provisions of a JSR. An invention created by a JSR is, without a contrary provision, jointly owned by two parties. Because the joint ownership of an invention may lead to unpredicted complex legal relationship, both parties must agree on some important aspects of the joint ownership before signing the JSR. This paper introduces some alternative provisions related to patent rights which are acceptable to both parties. A well balanced JSR may minimize possibilities of future disputes between both parties and further maximize research capabilities of them.



소프트웨어의 특허법적 보호 필요성


한국지식재산학회 산업재산권 제23호 2007.08 pp.395-422

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So many discussions have been made to find a proper answer for the question whether patent protection shall be allowed to software. Legal practitioners and scholars have regarded this issue critical and important because it may affect various aspects of international transactions. At the earlier stage, software was understood as copyrightable literary work written in a special language of source code or object code. Software developers were satisfied with this, expecting that software can be properly and sufficiently protected by copyright laws. However, it did not require many years until they realized the inefficiency and insufficiency of copyright protection for software. Copyright laws failed to protect the substantial technology in software but only the expressions of source code languages. It was later found that technology of software is consisted of substantial ideas, not merely expression. Accordingly, a new legal protection for software technology was urgent. U. S. Supreme Court changed its previous view that patent cannot be allowed to software(Gottschalk v. Benson). Many other countries followed this change and allowed patent for software, and so did Korea. Now many experts agree that a new kind of legal protection is required for software. In this regard, some new approach has been tried protection in accordance with Utility Model Act, and legislation of a new act which is different from the present Computer Program Protection Act(““CPPA””). However, these approach are neither appropriate nor practical, and any protections or solutions better than Patent Act are not suggested. On the other hand, some opinions are raised to stand against the patent protection for software. They assert that software patent will be misused by major companies because minor companies cannot afford the expenses of patent maintenance, application and litigation. But this possibility is imaginable but not present. Such expenses are not tremendous compared to the total expenses of any companies, and the litigation expenses do not cause any serious consideration in Korea. Moreover, statistics show that over 70% of mid-size companies hope for patent protection of software. Opponents raise various other grounds against patent software: that software has been protected by copyright laws having caused no problem so far; that patent protection may neglect to protect any inventors who are ignorant of existing software technology; that software patent may make serious damages to open-source software developers; and that software patent does not make any contribution to society after its expiration because its life is not so long. This paper shows why each of these assertions is neither effective nor appropriate in Korean society in practical aspects. This paper then moves to further research for any legal problems in patent protection of software under the present Patent Act, such as requirements for patent registration, interpretation of "use" of software patent, some considerations in the patent infringement litigation, and so-called “doubled protection” by CPPA and Patent Act for software. Finally, after reviewing other opinions for new ideas of compulsive license or license for ignorant inventors, this paper suggests a special arbitration system for software patent dispute for assisting the present patent protection under the Patent Act.



(新技術) 醫療行爲의 特許法的 保護에 관한 考察


한국지식재산학회 산업재산권 제23호 2007.08 pp.423-460

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The patent is the right for a inventor on protecting his idea absolutely. However, medical (neo-)treatment has been troublesome in the world(esp. in Korea) lately. Generally, man is said that medical treatment is related with human being lift or medical treatment is not related with little necessity of incentive in patent law system. So he grants that medical treatment should never be allowed to patent(right). Even though that is said above, medical treatment is inclined to be granted. For example, that is a invention of contraception's way with taking a little medicine, of hair multiplication etc. One of the same things, the medical deed(treatment) or (neo-)technology medical treatment is a representative. Allowing or not the medical treatment must be thought of the benefit and the opposite on human being. In present, the patent right on a invention has not been allowed to medical treatment invention in Korea. On the contrary, the patent right on a invention has allowed to medical treatment in the EU or United States of America. In Korean Patent Law(§29), a medical treatment invention has regulated no the (domestic) industrial utilization possibility. This regulation is different much than the foreign nations' one. That is, EU(EPC) and U.S.A(Patent Law) etc. on advanced foreign nations patent law system, medical treatment is allowed patent possibility. Because the nations have allowed the industrial utilization possibility on a invention, but restricting within a non-patent reason. On the respect of that, Korean Patent Law(K.P.L is the same below) cannot help being irrational one. In particular, if the article in the Law is codified as the present, the important issue can be said below. (1) The one is the invention of industrial utilization possibility as a patent requirement on the K.P.L §29. The question is the thing that medical treatment is not recognized at the invention of industrial utilization possibility on the K.P.L. (2) The other is the invention not to be recognized as a patent requirement on K.P.L §32. This article had better regulate that medical treatment is a invention of patent right on balancing with advanced nations such as EU or United States of America. After all, I think that the K.P.L should be recognized a medical treatment at industrial utilization possibility invention, and also amended medical treatment as the invention to be recognized at a patent requirement.



기술혁신이 직무발명제도에 미치는 영향 연구


한국지식재산학회 산업재산권 제23호 2007.08 pp.461-493

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Revised law is a single law about an invention in duty service and it was made with the object of regulating the procedures and compensation on the invention in duty service systematically. Accordingly, this revised law will exercise its influence on activation of the invention in duty service system. Invention in duty service encourages the researchers to concentrate on their study and attributes to the economic development by the invention of technology in industries. Correlation study in four different standpoints regarding the influence of invention in duty service system on the technological innovation, the indicator of the successful result, was conducted analysis outcome obtained by super computer gave 0.064 of very positive correlation coefficient between the compensation level and technological innovation.



특허정정의 범위와 효력


한국지식재산학회 산업재산권 제23호 2007.08 pp.495-533

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A patentee may voluntarily request a correction to the description or drawing(s) of a patented invention including defect(s). The patentee may also request a correction to the description or drawing(s) of a patented invention during the courseof a patent invalidation trial or an opposition to the grant of a patent in order to solve the grounds for the invalidation or the opposition, or to clarify the scope of the patent. However, the scope of the invention can be modified by the corrections, which may cause unexpected damages to third parties because of the effect of the patent against a third party. Therefore, the extent of an allowable correction and the requirements of the request of the correctionare important. In the case where the correction and the invalidation of the patented invention are all being tried in parallel with the litigation trail of the infringement, the court for patent infringement litigation trial must investigate the possibility of invalidation of the patent right justly, and even further must investigate the litigation trial by predicting whether the correction to thespecification or drawings may be granted or not. Therefore, it becomes more difficult for the court to adjudicate the case. In particular, if there is a great possibility that the correction to the claims of the patented invention will be granted, it is not easy to dismiss the request of the plaintiff for the reason of right abuses. Rather, the court will have to adjudicate the case after suspending litigation trials and ascertaining the result of the trail for the correction. Accordingly, the patentee must prevent the request for the patent invalidation trial, clarify obscure parts associated with the third party's benefits, and prevent the third party's right from being unjustly infringed by the correction of the patented invention. That is, the correction of the patent should be permitted within a scope and under requirements such that it can contribute to the benefits of both the patentee and the third party.



홀로그램 상표의 보호에 관한 비교법적 고찰


한국지식재산학회 산업재산권 제23호 2007.08 pp.535-576

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In recent times, new types of marks, such as sounds, scents, single colour itself and holograms have been increasingly used as trade marks in the marketplace. A hologram trademark is so-called a non- conventional trademark where a picture sequence is used to perform the trademark function of uniquely identifying the commercial origin of products or services. While the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) broadened the legal definition of trademark to encompass "any sign...capable of distinguishing the goods or services of one undertaking from those of other undertakings", it has traditionally been difficult to protect holograms as trademarks through registration, just as a sound was not considered to be a 'trademark'. Recently, Korea amended the Trademarks Act, which provides that a trade mark is any sign, including, inter alia, hologram marks, capable of being recognized graphically. This article is dedicated to examine the rules and practices for the protection of hologram trademarks in several countries, such as the United States, UK, Singapore, Canada and Australia, and to extract some bench-marking points for the future administration of the hologram trademarks in Korea. The graphical representation of such marks sometimes constitutes a problem for trademark owners seeking to protect their marks, and countries have different methods for dealing with this issue one another. In Canada, hologram trademarks are generally not acceptable if they can be represented graphically or as they are regarded as more than one mark. In the European Union, through a decision from the Sieckmann(case C-273/00), the ECJ states that graphical representation, preferably means by images, lines or characters, and that the representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. In the United States, the trademark manual for examination requires that a hologram used in varying forms does not function as a mark in the absence of evidence that consumers would perceive it as a trademark. A decision from the case of In re Upper Deck, TTAB held that a hologram used on trading cards in varying shapes, sizes, and positions did not function as a mark, because the record showed that other companies used holograms on trading cards and other products as anti-counterfeiting devices, and there was no evidence that the public would perceive applicant's hologram as an indicator of source. The applicant seeking registration of a hologram must submit a drawing of the mark that captures the dimensions thereof. Examiners are instructed to refuse registration of any holograms that show two different images on the grounds that the application is seeking protection for two separate marks. Further, the application must include detailed written description of the mark. During publication the drawing pages for these marks are published and thereafter the drawing page is incorporated into the registration certificate which is made available at the USPTO as well as the USPTO website. Business entities should be able to use holograms as a source identifier and a means to distinguish goods or services from others in the marketplace; however, at the same time, a useful hologram should be distinctive enough to be used to uniquely identify itself and its products or services to consumers. With these mentioned and more, followings are summarized: for registering a holographic device as a trademark, the hologram should be described in as much detail as possible, providing visual views of the hologram in various frames with descriptions of angle and appearance; some countries have a liberal view on the registration of simple holograms, such as in France, Australia and the United States; filing an international application through one of these countries first, once registered, would be helpful to get an international trademark; and, thorough studying and following up the rules and practices of these countries would be very helpful for a successful administration of the hologram trademarks system in Korea.



不正競爭防止法에 의한 商品形態의 保護


한국지식재산학회 산업재산권 제23호 2007.08 pp.577-615

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The Unfair Competition Prevention Act aims at constructing and maintaining the order for fair competition. The Act was amended on January 20th, 2004 to protect against copying of configuration of goods and prohibit such copying. Therefore when a certain configuration of goods which was developed and merchandised by other person has come to be on the market, then without regard to the matter if the configuration is widely recognized to indicate other person's product, or registrable as a design, it is in principle prohibited for a third person to make use of the same configuration or a substantial same one for goods of the same kind. Such a deed should constitute a type of unfair competitive deeds under the Act and destroy the order for fair competition. By the way, the amendment of the Act was deeply influenced by the Japanese legal protection system of configuration of goods. Even though several studies has been made on the legal protection of the configuration of goods under the new Act, the systematic analysis of Japanese legal theory and judicial precedent has never been studied so far. Accordingly, the aim of this paper is to examine the Japanese judicial precedent and review the existing legal theory about the configuration of goods in order to provide a systematic understanding of the new Act.



한미 FTA의 이행에 따른 미국의 법정손해배상제도의 도입과 그 한계


한국지식재산학회 산업재산권 제23호 2007.08 pp.617-648

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The primary function of the torts law of Korea is aimed to compensate the actual damages inflicted on the plaintiff by the defendant's tortious conduct. In order to recover his or her damages, the plaintiff must prove that the damages was caused by the defendant's tortious conduct. Also the amount of actual damages must be proven in a specific amount by a showing of evidence. However, this is a tricky inquiry because, in some cases, the exact damages is hard to measure. To overcome the difficulty, statutory damages have been proposed as an alternative way by some critics because it may be imposed by the court without any proof of actual damages. According to KORUS FTA, Korea should introduce statutorily fixed damage awards with respect to copyright and trademark infringement. The purpose of statutory damages is to compensate the copyright owner for lost profits and unascertainable actual damages, and also to deter future infringements. However, under the Korean law, the plaintiff is only able to recover his or her actual damages. The imposition of damage awards to punish unlawful conduct and deter future infringements has never been allowed. Therefore, the introduction of statutory damages can basically cause some conflicts with the traditional remedy rule of Korea. In addition, the punitive portion of a statutory damage award can sometimes imposes an unconstitutional grossly excessive penalty. In particular, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence. Therefore, in implementing statutory damages in the copyright law of Korea, it should carefully consider that the amount of statutory damages must not be grossly excessive in relation to those goals. In this regard, this article proposed new provisions as followed; the copyright owner may elect, at any time before a trial court's judgment is rendered, to recover an award of statutory damages for all infringements involved in the action, with respect to any one work, in a sum of not less than 300,000 Won or more than 30,000,000 Won as the court considers just. In a case of where the court finds that the result of infringement is grave, the court in its discretion may increase the award of statutory damages to a sum of not more than 100,000,000 Won, and In a case of where the court finds that statutory damages are grossly excessive, the court may decrease the award of statutory damages, regardless of the above minimum award.



헤겔의 법철학과 지적재산


한국지식재산학회 산업재산권 제23호 2007.08 pp.649-673

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Personality theory describing property as an expression of itself lies in continental philosophy, not in Anglo-Saxon jurisprudence. It is especially developed by Georg Wilhelm Friedrich Hegel. According to his personality theory an idea belongs to its creator because the idea is a manifestation of the creator's personality or itself. Hegel stresses that one cannot alinate or surrender any universal element of one's self; therefore, slavery is not allowed because by "alienating the whole of my time, as crystallized in my work, I would be making into another's property the substance of my being, my universal activity naad actuality, my personality." For Hegel, intellectual property is a capital asset which can be understood as property which has a greater tendency to permanence and a greater ability than other property to give its own economic security. The article deals with which meaning for Hegel intellectual property has, and which kind of problems his theory includes, especially in the assignment of intellectual property as to his personality theory.



특허기술의 표준 책정과 경쟁법 적용의 문제


한국지식재산학회 산업재산권 제23호 2007.08 pp.675-712

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Recently, many commercial standardization arrangements incorporating patented technologies in a standard have been vigorously made. Standardization could lead many beneficial effects of product interoperability and compatibility reducing barriers to entry, or creation of unified platforms for development of new products. However, the standardization including certain patented technologies would cause the incorporated technology to be a necessary factor for businesses to survive in the relevant market adopting the standard. For this reason, standardization process may be affected by patent proprietors wanting certain standard including their patented technology to be adopted. Usually, Standard?setting Organization(SSO) require their members to reveal all their pending or existing patents before adoption of a standard. Sometimes, the SSO could try to avoid particular patents as necessary factor in a standard when it becomes aware of the patents. The SSO’s behavior could allow the adopted standard to be opened participants in a relevant market. However, patent proprietors have been reluctant to disclose all their existing or pending patents in standard?setting process. In several cases, this incomplete disclosure has been combined with a refusal to license or a demand for excessive terms after the standard requiring the proprietors’ patents has been set. Moreover, SSOs would demand their members to promise to license an unidentified patent on FRAND (fair, reasonable and non?discriminatory) terms to use its patented technology. In that case, false FRAND commitment may be part of a strategy designed to influence the SSO's technology choice. In this reason, the breach of FRAND commitment case was brought to the court with accusation of violation of antitrust law. The patent proprietor’s concealment of patent or false commitment could affect competition to the extent that it leads the SSO to adopt a lower quality standard rather than otherwise the SSO would choose. For this reason, when patent proprietor’s behavior causes the SSO not to verify the openness of the claimed patent, it should be under investigation of a competition agency.


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