주지상표의 보호 -상표법과 부정경쟁방지법의 조화를 위한 제언-

Abstract

Like in the U.S., well-known marks are protected in Korea too. While

Lanham Act includes all the relevant statutory provisions relating to

well-known marks and registered marks, statutory provisions in Korea to

protect well-known marks are found both in the Trademark Act and in the

Unfair Competition Prevention and Trade Secret Protection Act. Section 7 of

the Trademark Act of Korea provides that registration is not issued to

trademarks which are identical, or similar to, another person's well-known

trademark. Although trademark rights (or statutory remedies) under the

Trademark Act are granted only to those who have their own trademarks

registered, the owners of well-known marks are allowed to prevent others

from applying for registration of marks which are identical or similar to their

well-known marks. On the other hand, Unfair Competition Prevention and

Trade Secret Protection Act grants remedies to all the owners of well-known

marks whether they are registered or not.

Since well-known marks are well protected under the Unfair Competition

Prevention and Trade Secret Protection Act, their owners are not forced to

apply for registration of their marks. The conflicts between well-known marks

and registered marks begin, however, when anybody other than the owner of

well-known marks tries and applies for registration of the same or similar

marks. In the first step, well-known marks' owners are allowed to oppose the

registration to the Korea Industrial Property Office (KIPO) which is in

charge of trademark registration. Secondly, well-known marks' owners are

entitled to petition an invalidation trial at the Patent Tribunal. The question,...