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
제26호 (8건)

【특집논문】한-EU FTA에서의 지적재산권 쟁점


한ㆍEU FTA에서의 특허 관련 쟁점


한국지식재산학회 산업재산권 제26호 2008.08 pp.1-30

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After the Korea-US FTA having been agreed on April 2, 2007, Korea and European Union have negotiated for the Korea-EU FTA. This article introduces some patent issues which can be raised during the negotiation, and discusses means and measures to deal with the negotiation. Regarding the issue raised by EU, Korea's accession to the PLT, Korea may promise to accede to the PLT by 2012 or at the latest 2015. It is believed that the PLT may be beneficial to domestic applicants as well as European applicants. With regard to the calculation method for drug patent term extension, we may ask EU to harmonize EU's method with that of the U.S.A. first and then Korea may follow the harmonized method. As negotiation leverages, Korea may ask EU to agree on (1) establishment of the EU Patent Court, (2) expansion of coverage of the grace period system, (3) patent term extension to compensate for examination delay, (4) harmonization of inventive step standard, etc. This article explains basics of said systems and reasons thereof for Korea to urge EU to adopt them. IP-based country is a country where creation, protection and utilization of IP leads dynamics and advanced ness of the economy. Therefore, in the IP-based country, goal of IP administration will be to enhance public sector function for IP creation, protection and utilization. It is believed that the Korea-US FTA and the Korea-EU FTA will guarantee upgraded IP protection in Korea.



한ㆍEU FTA에서 상표 및 디자인 분야의 쟁점


한국지식재산학회 산업재산권 제26호 2008.08 pp.31-76

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FTA negotiations between Korea and EU including intellectual property matters are expected to be concluded within a few months. This article is to briefly review on the contending issues of Korea-EU FTA in the field of trademark and design protection. This article firstly studies issues regarding design protection having a legal controversy. For example, ⅰ) design protection requirements of individual character ⅱ) protection of the unregistered community design(UCD) ⅲ) whether including stocking for infringement ⅳ) How to reject or invalidate the design application conflicting with prior copyright ⅴ) a cumulative protection by the design right and the copyright ⅵ) adhere to standards of Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs Further, this article is to address issues concerning the trademark protection. Under the FTA negotiations between Korea and EU, each party is required to adhere to the standards of Singapore Treaty on the Law of Trademarks. In order to keep them by the Korean trademark law system properly, required issues are discussed for a desirable directions to the revision of the Korean trademark law.



한-EU FTA에서의 지리적표시 보호 쟁점


한국지식재산학회 산업재산권 제26호 2008.08 pp.77-106

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In recent years, the proliferation of Free Trade Agreement (FTA) has become a global trend. Intellectual property rights (IPRs) are a crucial economic and political issue for transnational corporations in particular and industrialized country governments in general. The TRIPS Agreement signalled a major change in international economic relation as it established a link between adequate protection of intellectual property and international trade. The TRIPS Agreement introduces minimum standards of protection and some offers some flexibilities, but recent developments suggest a growing trend towards much more strict standards. Bilateral and plurilateral (including regional) agreements may also serve the purpose of protecting geographical indications internationally. This article outlines Geographical Indications(GIs) issues which will be raised in relation to the proposed Korea-EU FTA.



한-EU FTA 지적재산권 집행 분야 주요 쟁점


한국지식재산학회 산업재산권 제26호 2008.08 pp.107-139

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The protection of intellectual property rights has become a major issue in international arenas, and is recently discussed much more than before. It is strongly requested by international society for Korea to raise the level of IP protection in order to match the global standard even after the conclusion of negotiation process of the KORUS FTA. The effective enforcement of IP rights is an indispensable element to achieve the obligations under KORUS FTA, which even demanded a concrete legislative and judicial reform of the current Korean legal system. Above all, civil and criminal sanctions play the most important role in enforcing IP rights. This paper examines on the IP enforcement issues discussed during the Korea and EU FTA negotiations. After looking at the current system of enforcing mechanism of the both parties, the main topics reported by the media has been discussed. To understand current enforcement systems of the EU, the EC Enforcement Directive was analyzed. The Directive is of importance not only for analyzing the current EU system, but also it could be a cornerstone to understand the proposals of the EU. Amongst many issues, this paper focused on collection of evidences, ex parte impoundment order, provisional measures, right to claim information, etc.




소프트웨어발명의 특허성 판단에 관한 비교법적 고찰


한국지식재산학회 산업재산권 제26호 2008.08 pp.141-174

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Die Diskussion uber das Ob und Wie von Patentschutz fur computerimplementierte Erfindungen verlagert sich in den jetzten Jahren stetig aus dem rechtsdogmatischen in den rechtspolitischen und okonomischen Bereich. Die Bestimmungen fur den gesetzmaßigen Schutzbereich von Patent-Ausschlussrechten unterscheiden sich weltweit zum Teil erheblich. So ist es bis heute nicht gelungen, die europaischen, die US-amerikanischen und die koreanischen Vorschriften fur die Beurteilung der Patentfahigkeit computerimplementierter Erfindungen zu harmonisieren. Dieser Beitrag befasste sich mit der Analyse der Unterschiede in der Beurteilung patentfahiger Patentgegenstande von Softwareerfindungen vor dem USPTO, dem EPA und KIPO. Die restriktivere Herangehensweise des EPA, KIPO fuhrte, verglichen mit den USA, in der Vergangenheit zu einer hoheren Rate von Zuruckweisungen von Anmeldungen fur Softwarepatente. Bei der Prufung gesetzlicher Erfordernisse spielt Technizitat fur europaische, koreanische Softwarepatente eine dominierende Rolle, wahrend die Rechtsprechung in den USA mittlerweile jedwede Beziehung zur Technizitat explizit ausgeklammert hat. Ausgangspunkt der rechtlichen Diskussion der Patentierbarkeit sollte der Grundsatz der leistungsbezogenen Betrachtung sein. Die Prufung der Patentierbarkeit muss mit der Frage beginnen, welches die der Erfindung zugrude liegende Leistung ist. Dieser Leistung ist der erfinderische Beitrag.



부정경쟁방지법상 주지성의 지역적 범위에 관한 소고 : 일본 부정경쟁방지법과의 비교법적 고찰


한국지식재산학회 산업재산권 제26호 2008.08 pp.175-205

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Unfair Competition Prevention Law Articles 2, (1), (ⅰ) and (ⅱ) provide the basic context for this subject. According to Unfair Competition Prevention Law Articles 2, (1), (ⅰ) and (ⅱ), “Acts of unfair competition” mean acts causing confusion with other well-known indication of goods or commerce in Korea. This means that other well-known indication of goods or commerce, not in a foreign country, but among Korean consumers. Thus, the Regional Scope of Well-Knownness under Unfair Competition Prevention Law requires that the indication of goods or commerce are well-known in Korea. If the goods or commerce are only well-known indication in a foreign country, they can’t be a object of protection under Unfair Competition Prevention Law. Regional scope of the well-knownness in Korea does not necessarily mean that it should be well-known to every person throughout the country. Judicial precedents consistently show that if a trademark is well- known to merchandisers or consumers in a certain area, that sufficient to establish the well-knownness. Regional scope of the well-knownness in Unfair Competition Law does have its own importance and concrete standards of judgement are required. In Japan, there are various cases related to the regional scope of the well-knownness. Specifically, there are many cases related to the conflict of well-knownness to each other in another area caused by business expansion. In order to solve the conflict of well-known indications to each other, Unfair Competition Prevention Law also should accept the same provision as Right to Continued Use of a indication by Virtue of Prior Use in Korean Trademark Law or Japan Unfair Competition Prevention Law.



사이버엔터테인먼트의 법적 문제

손경한, 박진아

한국지식재산학회 산업재산권 제26호 2008.08 pp.207-244

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in recent years, entertainment industry has grown up sharply, which significantly affects our daily life. it was expedited by the rapid growth of cyber entertainment. Cyber entertainment means entertainment in cyberspace provided by online media, i.e. mp3, VOD, and online computer games. iPTV and internet mobile phone are expected to replace the traditional entertainment media such as TV, CD, DVD, and to evolve continuously. Virtual life entertainment like Second Life leads us to a new world. Cyber entertainment has certain characteristics which are much different from the traditional entertainment. The Recipients of cyber entertainment service may enjoy it personally without going out to public places like a movie theater or playground. They can participate in production, modification, and development of the contents of the cyber entertainment through UCC, computer games, Second Life, and even replies. The Recipients can easily shift the time and place of the cyber entertainment and enjoy the contents as many times as they wish. They have a plenty of choices in media to access contents of cyber entertainments. Since there is no border in cyberspace, cyber entertainment service can be provided transnationally. Cyber entertainment presents almost real and pleasant experience to the Recipients, who are in many instances devoted thereto, if not addicted. The contents of cyber entertainment are more than occasionally obscene, violent, or gambling-oriented. Minors are exposed to search undesirable indecency. Cyber entertainment service using computer network is vulnerable to leakage of personal information. The contents of cyber entertainment, from time to time, contain the materials that infringe copyright. Due to the above characteristics of cyber entertainment, the legal principles developed for traditional entertainment are not adequate for cyber entertainment. The authors will examine the traditional legal principle and how they can be modified, if not totally replaced by the new legal principles. This paper will review the issues of ownership in virtual property such as UCC, avatar, and those created in Second Life. The role of Online Service Providers (OSPs) is critical in cyber entertainment. OSPs create and control cyber world. So to speak, it is a patriarchy in cyberspace. The authors argue that this OSPs’ role of paternity should be well-recognized and refined. They create the systems and establish the rule of cyberspace. The OSPs are required to take more responsibility in protecting their customers and preventing them from illegalities. They should take measures against obscenity, violence, defamation, and infringement of prⅳacy or intellectual property. This paper will further discuss rights and obligation of the parties to cyber entertainment, mainly the OSPs and the Recipients. Due to the increasing importance of cyber entertainment to the indⅳidual Recipient, his interests and rights should be well respected and secured. The terms and conditions of the service must be fair and equitable for both parties. The authors will deal with other residual legal issues in cyber entertainment that has cast enormous impacts on our society already.



저작권의 역사와 철학


한국지식재산학회 산업재산권 제26호 2008.08 pp.245-306

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It is the culture that the copyright really counts for. Due to the relativity which is one of the most significant characters of culture, universal philosophy of copyright which is available regardless of time and space cannot exist. Historical approach is important in the point that philosophy cannot be actual apart from the context of the period. The traditions which justify copyright are divided into two; one is natural right tradition, the other is utilitarianism tradition. Under the civil law tradition countries, like France and Germany, copyright can help the relationship between authors and intellectual works have moral relevance, which is a natural right. On the other hand, the common law tradition countries, like the United Kingdom and the United States consider justification of copyright as the result of the special relation between society and intellectual works. Copyright is recognized as a statutory right not as a natural right. Hopefully, this basic research on the history and philosophy of copyright would make a contribution to solving international commerce problems like FTAs as well as the conflicts between copyright holders and users.


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