商標의 識別力:“ 우리은행”관련 特許法院 判決에 대한 비판적 검토

서지정보

ㆍ발행기관 : 서울대학교 기술과법센터 ㆍ수록지정보 : LAW & TECHNOLOGY / 4권 / 1호
ㆍ저자명 : 정상조

목차

I. 머리말
II. 特許法院判決의 개요 및 문제점
III. 識別力의 개념 및 강약
IV. 識別力의 判斷
V. 使用에 의한 識別力의 取得
VI. 결론

한국어 초록

商標法과

영어 초록

Trademark Act of Korea requires distinctiveness of a mark to be registered at Korea Intellectual Property Office (KIPO). The Unfair Competition Prevention Act presumes that all the marks be distinctive and well-known to be protected. Although distinctiveness of marks is the utmost important requirement, its concept and its criteria are not clear and certain at all. Recently, the Patent Court of Korea held that“ Woori Bank”in Korean“, Woori Bank”in English, and“ Woori Bank”+ diagram were all non-distinctive. Although three of the above marks turned out to be distinctive among consumers due to substantial amount of advertisement and exploitation in commerce, the Patent Court denied validity of trademark registration merely on the ground that the distinctiveness was not achieved at the time of application. The judicial decision of the Patent Court raised questions with regard to the Court’s criteria for distinctiveness: If the mark“ Woori Bank”and other related marks lead to some imagination on the part of consumers, they may have some more distinctiveness than mere“ descriptive marks.”If the marks have already become distinctive and well-known to consumers at the time of litigation, what is the point of invalidating registration of a mark which was alleged to be non-distinctive at the time of trademark application. The author finally indicated that the Patent Court’s criteria is relatively high in the wide range of spectrum of distinctiveness. As the market in Korea develops to an advanced one, even a mark which has a low degree of distinctiveness becomes increasingly important both to consumers and to its user. It is thus submitted that the criteria for distinctiveness should now be adjusted a little bit lower and change into more clear and certain ones.

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