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商標管理에 관한 硏究 : 商品의 品質誤認 내지 需要者 欺瞞 商標를 中心으로
천효남 東國大學校 行政大學院 1998 국내석사
The function of trademark is to protect prior-used trademark as well as assure users of the quality of goods and source which uses the specific trademark. The Korea Trademark Law clarifies the term "the liability to mislead as to the quality of the goods or to deceive the consumers" to enforce appropriately such goal and function of the trademark system. The current Trademark Act however has no provisions on the definition or judgement standard on this concept, thus only relies on the interpretation and application of theories and precedents which can lead to inconsistency and confusion. This thesis examined related theories and precedents and indicated the matters in relation with the practice of examination. It also analyzed precedents which recognized trademarks as well-known trademarks and other's trademarks, providing the judgment standard on well-known trademarks. Furthermore, it considered whether the trademark which is liable to deceive consumers applies only to similar goods or to different goods. (2) Most precedents related to consumer deception judge whether the prior-used trademark is likely to deceive consumers by the degree of the recognition of that trademark. The fickle standards of the public caused much confusion in trademark practice. The trend of recent precedents extend the range of application on prior-used trademark to the degree that is not well-known, but is recognized as the trademark of another. This may lead to the nullification of the provision on well-known trademark in Article 7 section (1)(xi) and may oppose the first-to-file principle. (3) This thesis introduced that Article 7, section (1)(xi) has been abused without specific standard and restriction. The ambigous range of application of the Article increased the number of appellate trial against the examiner's ruling of refusal and trial for invalidatin and demurrers by the third parties. Now, various precedents that caused much confusion are harmonizing after the 1997. 3. 14 ruling of the Supreme Court case 'sentence 96 post 412'. This precedent is a milestone case for interpreting and appling of Article 7, section (1)(xi). Namely, with relation to consumer deception, a registered trademark doesn't haved to be well-known and famous, but at least be recognized as his trademark among users in general trade. It also analyzed precedents which recognized trademarks as well-known trademarks and other's trademarks, providing the judgment standard on well-known trademarks. Furthermore, it considered whether the trademark which is liable to deceive consumers applies only to similar goods or to different goods. (2) Most precedents related to consumer deception judge whether the prior-used trademark is likely to deceive consumers by the degree of the recognition of that trademark. The fickle standards of the public caused much confusion in trademark practice. The trend of recent precedents extend the range of application on prior-used trademark to the degree that is not well-known, but is recognized as the trademark of another. This may lead to the nullification of the provision on well-known trademark in Article 7 section (1)(xi) and may oppose the first-to-file principle. (3) This thesis introduced that Article 7, section (1)(xi) has been abused without specific standard and restriction. The ambigous range of application of the Article increased the number of appellate trial against the examiner's ruling of refusal and trial for invalidatin and demurrers by the third parties. Now, various precedents that caused much confusion are harmonizing after the 1997. 3. 14 ruling of the Supreme Court case 'sentence 96 post 412'. This precedent is a milestone case for interpreting and appling of Article 7, section (1)(xi). Namely, with relation to consumer deception, a registered trademark doesn't haved to be well-known and famous, but at least be recognized as his trademark among users in general trade. The use of identical or similar trademark to the registered trademark for goods or services which are identical or similar to those of the registered trademark will lead to comsumer deception on the source of goods. Furthermore, we can observe the social, economical aspects of the application range on consumer deception beyond the aspect of the Commercial Code. As the economical and social structure has changed, the range of application needs to meet the social norms and be operated case by case with flexibility. Finally, the future of the trademark system is encouraging because the rationality and validity in the substantial practice of trademark, including examination and trial examination, are advancing and the framework of interpretation and operation Article 7, section (1)(xi) are developing more completely.