표장의 형태를 통해 분석한 지리적 표시 단체표장의 활용성 제고에 대한 고찰

나동규 ( Dong Kyu Na ) 한남대학교 과학기술법연구원 2014 과학기술법연구 Vol.20 No.1

The geographical indication collective marks protect the producers and enforce the competitiveness of their agricultural and marine products and other related processed goods etc. by guarding the geographical indication of regional products which contains superior geographical characteristics. They also protect the consumers by providing the correct information of the origins of the products. The geographical indication collective marks are granted principally only when the marks are consisted of geographical indications or the marks are combined with geographical indications and product names. However, it is also allowed that these marks contain common patterns, logos, and figures for the general use of geographical indications, except when parts other than geographical indications weaken or dilute them. For the activation of legal entity of geographical indication collective marks, it is desirable to adopt a design-combined mark instead of a word mark in order to distinguish between union members and non-union members. By letting union members and non-union members use different marks in the same local area, the dilution of the quality assurance of union members that can arise by the free-ridings of non-union members can be stopped. In order to advertise regional products to consumers, it is also desirable to show that the geographical indication collective marks were granted. For advertisement purposes, effort should be taken for the awareness of consumers for the regional product by using the designed-combined mark. Also, promotional marketing such as showing lateral notation which indicates the authentication receiving the geographical indication collective marks in the proper space on the regional products with the design-combined marks is necessary.

한ㆍ미 FTA 이행을 위한 미국의 증명표장제도 검토

김원오(Won-Oh Kim) 세창출판사 2007 창작과 권리 Vol.- No.48

Recently KORUS FTA including the Clause that "Each Party shall provide that trademarks shall include certification mark" has been concluded at the end. This article is to review on the American certification mark system as an implementation action of KORUS FTA. This article firstly studies a certification mark in general by comparing it with a trademark, service mark or collective mark. It performs a distinctly different function from that of a trademark, service mark or collective mark. It is not used by the owner nor is it used to identify and distinguish the goods or services of any one party. Rather, it is used only on the goods and services of others and serves as a guarantee that those goods and services meet the standards set by the certification mark owner. Further, this article is to address issues concerning the requirements for the registration of certification marks and the responsibilities of the certification mark owner. Under the American certification mark system, a certification mark owner is required to adhere to strict standards of enforcement and control. Improper use of the mark or failure to adequately control the use of the mark can lead to the cancellation of the registration. For the protection of geographical indication as a certification mark, there are some exceptions in registration requirements thereof. In order to introduce it into Korean trademark law system properly, the above issues are discussed or examined and proposed a desirable directions for the revision of the Korean trademark law.

미국 증명표장제도와 일본의 관련제도 (상표제도, 인증제도)에 대한 고찰

조경희 ( Kyeong Hee¸ Cho ) 한국지식재산연구원 2009 지식재산연구 Vol.4 No.2

Japan do not have the Certification marks(CM) system, but gradually countries are adopting the system. In fact, the CM system was first talked in 2005 at government system studying group, but the system was just the third type of CM for protecting geographical indications. Japan did not adopt the CM system, instead it adopted the regional collective mark system to make the general collective mark more extensive. And, if we want to study CM in Japan, it is crucial to compare JIS(Japanese Industrial Standard) with CM, because JIS mark is well-known national voluntary certificate mark. And thus this paper first comments on the definition and the characteristics of American CM. And then it chooses the Japanese Trademark Act and Certificate system as the relating systems. Lastly, it analyzed some assignments. The first is about the examining standard of the descriptive nature against CM registration. Specifically, it focuses on the cases relating to the descriptive words like “approved by”, “inspected”, “conformed to”, “certified”. The second is concerned with the relationship between collective mark and CM. The both are practically indiscernible because of connecting with the group. However, the US accepts the CM as one type of trademark for the utility of certifying certain characteristics and the control level different with the collective marks. The third point is the compatibility of the regional-based collective mark and CM. Both countries protect the geographical indications with the Trademark Act, but the rules are difficult to apply. The final point made is a comparative analysis on the no-challenge duty in CM licensing contract. The applicable settlement systems of both are different.

대한민국 특허(상표)제도의 문제점(Ⅷ) : 지리적 표장에 대하여

최덕규 세창출판사 2013 창작과 권리 Vol.- No.70

Until the Lanham Act of 1946, a geographical name could not be registered as a trademark because the prohibition against a geographical mark is similar to that against surnames. The bar against geographical marks is merely a variation of the bar against descriptive marks. Thus, a geographical mark is prohibited only if the term is primarily geographically significant with respect to the particular product in the market in which it is sold. A geographical mark is analyzed into a geographically descriptive mark or a geographically misdescriptive mark. A geographically descriptive mark is prohibited for other competitors' interest, while a geographically misdescriptive mark is prohibited for protection of consumers who might be confused or deceived from the wrong information on the geographical name. If an otherwise geographical term conveys something other than geographical significance, it fundamentally is arbitrary, because its relationship to the product is not natural but contrived and unrelated to any inherent meaning in the mark. Based on the concept above of the geographical mark, the provision, at Article 6 Section 1 Paragraph 4 of Korean Trademark Law, that a well-known geographical name is not registrable for trademark is against the concept. It is not clear and there are no standards to determine which geographical name is well-known. Primarily geographical significance should be measured with respect to the market and the goods of the applicant. The provisions of the Trademark Examination Manual based on the provision of the Trademark Law causes a lot of controversy. Both provisions shall be deleted from the Trademark Law and the Manual.

상표법상 증명표장에 의한 지리적 표시의 보호 고찰

이영주(Young-Ju Lee) 한국비교사법학회 2010 비교사법 Vol.17 No.2

Geographic Indication(GI) is the sign to identify a product originating from a certain region since the quality or other characteristics of a product is essentially attributable to its geographic origin. GI itself does not have inherent distinctiveness. However, when GI is used on goods for a long time, it will be able to acquire distinctive character. It is essential that the product with certification mark is managed and controlled because it is used in order to indicate specific aspects of products such as their geographical origin. The products passing the test in accordance with accredited standard are the key element of the certification mark. On account of this characteristic, many countries operate that GI could be registered in the form of certification mark under trademark Act. From the consumers' point of view, the certification mark system has a strong point such as providing an information and a standard about quality of the product and also the local brand or sign indicating certification of quality could be registered in the type of GI certification mark. However, the certification mark system has the shortcomings as difficulty of the management and control to correspond a certain standard. In Korea, the system for the protection of GI certification mark has been not introduced yet. In this situation, it will be very meaningful to examine in advance on the introduction of the GI certification mark trademark system in Korea. This study, above all, presents the explanation of the GI certification mark. And then I will review the cases of other countries about the protection of geographical name by trademark right. Finally, I will consider the applicability and the scope of protection of the GI certification mark in Korean trademark system.

지리적표시 단체표장의 위조상표 단속 강화방안

나동규 ( Dong Kyu Na ) 한남대학교 과학기술법연구원 2015 과학기술법연구 Vol.21 No.2

The Special Judicial Police Force for Trademark of Korean Intellectual Property established in 2010, in order to regulate counterfeit trademark, have always been 97% weighted towards regulating and protecting foreign brands. Due to this phenomenon, it is only natural that the Special Judicial Police Force for Trademark of Korean uses more of its budget and places more effort into regulating and protecting foreign brands, neglecting its duty to korean brands. Meanwhile, the Korean Intellectual Property Office established the Geographical Indication Collective Mark in 2005, in order to protect the rights of local product brands in Korea, and began actively enforcing budget support to further encourage its rights. In result, nearing the end 2014, there were 298 registrations of the Geographical Indication Collective Mark, and the numbers have been increasing every year since. However, despite the positive feedback, it is still evident that the efforts of the Korean Intellectual Property Office for the illegal use of regional brands in korea are close to non-existent. In situations like this, the active involvement of the Special Judicial Police Force for Trademark of Korean is crucial in order to enforce the rights and prevent violation of the Geographical Indication Collective Mark. It is expected that the regulation placed from the Special Judicial Police Force for Trademark of Korean (with the help of the Geographical Indication Collective Mark) on Korean brands will alleviate to some degree, the heavy bias present towards foreign brands. With the measures taken to strengthen the enforcement of the Geographical Indication Collective Mark, its goal of protecting the expected profit of consumer for real goods, allowing maintenance of credit of producer groups, and further activating the local economy must be fulfilled.

지리적 표시 단체표장제도와 품질인증제도의 관계

정태호(Tae-ho Jung) 세창출판사 2005 창작과 권리 Vol.- No.40

Before July 1, 2005, Geographical Indications were only protected by the Quality Certification System under the Agricultural Products Quality Management Act and the Trademark Act did not allow registration of marks consisting solely of geographical names, which indicate the origin of goods and/or famous geographical names. However, under the revised current Trademark Act, a mark consisting solely of a geographical name can be registered with respect to special products for which that geographical name is noted if the mark is applied for as a "collective mark" in the name of the community of the region that produce the special products. In the meantime, the Collective Mark System for Protection of Geographical Indications and the Quality Certifi- cation System under the Agricultural Products Quality Man- agement Act may conflict with each other, because both of them essentially deal with the problems related to protection of Geographical Indications of agricultural products. But, despite the possibility of the above problem from arising, the two systems shall be supplemented with an application that effectively covers problems that may exist between the systems without any conflict.

지리적 표시 단체표장과 지리적 표시 증명표장의 보호에 관한 연구

이규호 가천대학교 법학연구소 2009 가천법학 Vol.2 No.3

지리적 표시는 지리적 출처를 나타내기 위해 상품에 대해 사용되는 표지를 의미하는데, 이는 품질 중립적 지리적 출처표시와 품질관련 지리적 출처표시로 분류할 수 있다. 품질관련 지리적 출처표시는 원산지명칭(appellations of origin)이라고 한다. 지리적 표시 단체표장이란 지리적 표시를 사용할 수 있는 상품을 생산·제조 또는 가공하는 것을 업으로 영위하는 자만으로 구성된 법인이 직접 사용하거나 그 감독하에 있는 소속단체원으로 하여금 자기 영업에 관한 상품에 사용하게 하기 위한 단체표장을 말한다. 여기에서 "지리적 표시"란 "상품의 특정 품질·명성 또는 그 밖의 특성이 본질적으로 특정 지역에서 비롯된 경우에 그 지역에서 생산·제조 또는 가공된 상품임을 나타내는 표시"를 뜻한다. 그리고 "단체표장"이란 "상품을 생산·제조·가공·증명 또는 판매하는 것 등을 업으로 영위하는 자나 서비스업을 영위하는 자가 공동으로 설립한 법인이 직접 사용하거나 그 감독하에 있는 소속단체원으로 하여금 자기 영업에 관한 상품 또는 서비스업에 사용하게 하기 위한 표장"을 의미한다. 한미 FTA가 타결됨에 따라 향후 우리나라에 증명표장이 도입될 가능성을 고려하여 본고에서는 지리적 단체표장을 지리적 증명표장과 비교하여 논의하기로 한다. 본고에서는 이 목적을 위하여 다자간 국제조약 및 양자간 자유무역협정상 지리적 표시의 보호 및 미국과 유럽의 지리적 단체표장 및 지리적 증명표장에 대해 설명하기로 한다. 그런 다음 우리나라법제 하에서 증명표장제도 도입에 따른 상표법에 따른 지리적 표시의 보호와 농산물품질관리법 및 수산물품질관리법상 지리적 표시의 보호 상호간의 관계를 재정립하고자 한다. "Geographical indications (hereinafter "GI")"means indications that identify a good as originating in a region where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.Art. 18.2 (2) fn 5 of KORUS FTA prescribes that "geographical indications means that identify a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin. Any sign (such as words, including geographical and personal names, as well as letters, numerals, figurative elements, and colors, including single colors) or combination of signs, in any form whatsoever, shall be eligibleto be a geographical indication."Also, according to Art. 18.2 (2) of KORUS FTA, Korea should provide that trademarks shall include certification marks and that geographical indications are eligible for protection as trademarks. The Free Trade Agreement between Korea and EC also protects GIs. This Article explores the protection of GIs in international and regional treaties or agreements. Furthermore, the Article explains the protection of GIs in USA and EU in terms of collective marks and certification marks. Afterwards, the Article scrutinizes the protection of GI collective marks pursuant to Trademark Act in Koreaand the protection of GIs in accordance with the Act on Quality Control of Agricultural Products and the Act on Quality Control of Aquatic Products in Korea. Finally, the Article stresses the approximation between the three types of GI protection in accordance with the three different Acts.

지리적표시 보호법제에 관한 연구

박현경(Hyun-Kyung Park) 한국기업법학회 2008 企業法硏究 Vol.22 No.1

This article studies the legal system of Geographical Indications(GIs) of international and national systems. GI is still new and strange area as an intellectual property in most of the world. There are only 3 articles in TRIPS to protect GI as a minimum standard. First, general protection to any commercial products, second, additional protection especially on wine and spirits, and the last, exceptions on GIs protection and future development of the system. TRIPs hands over details for protection of GIs to every member nation's national legislations. GIs are defined as the indications which identify a good as originating in the territory of a Member…where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. They were designed to protect consumers from being misled, producers and traders from being misappropriated. In addition, they protect agriculture and rural society and culture. Comparing GIs with trademarks, in spite of many similarities in common, GIs need certain place-products connection and political and social policies more than those similarities. However, most of countries(including korea) have GIs protected in the trademark system by regionally based collective marks. Thus there seems to be conflicts when a GI seeks to be protected where there is a prior registered trademark. This article studies the relationship between GIs in the form of regionally based collective marks and trademarks, and then explains the development of international GIs system. Finally, it shows the Korean legal system to protect GIs through regionally based collective marks in the Trademark Act and the Agricultural products Quality Control Act.

단체·증명표장제도를 통한 전통문화표현물의 법적 보호

양대승 한국지식재산연구원 2012 지식재산연구 Vol.7 No.1

Since the end of the 1990’s, the topic of Traditional Cultural Expressions(TCEs) or Expressions of Folklore(EoF) has entered the ambit of intellectual property discussions with the World Intellectual Property Organization(WIPO). Traditional and Cultural Heritage holders stress the difficulties they encounter in preventing or controlling the commercial use of their Traditional and Cultural Heritage by third parties and in benefiting from this commercialisation themselves. They also express concerns about the inappropriate and offensive use of their Traditional and Cultural Heritage and wish to be have the possibility to object to any false attribution. In most cases, industries or third parties exploit Traditional and Cultural Heritage without asking for consent and without sharing the benefits of such exploitation with the Traditional and Cultural Heritage holders. Without an adequate legal protection system, Traditional Cultural Expressions(TCEs) can be owned by those with money and knowledge to abuse the existing system, rather than the actual Traditional Cultural Expressions(TCEs) holders. Under such circumstances, the actual Traditional Cultural Expressions(TCEs) holders who have been developing and maintaining Traditional Cultural Expressions(TCEs)throughout generations, may be excluded from the benefits generated from using Traditional Cultural Expressions(TCEs). Once registered, collective marks or certification marks can potentially be renewed perpetually. In this respect, the collective marks or certification marks system can help satisfy many of the concerns and policy objectives of Traditional and Cultural Heritage holders. The registration of Traditional and Cultural Heritage as collective marks or certification marks may assist in preventing or controlling the unwanted commercial use of Traditional and Cultural Heritage by third parties and increase their commercial benefits, as the addition of a label on a good adds to its value and increases consumer recognition of authentic traditional and cultural goods. When combined with an appropriate marketing strategy, the registration of Traditional and Cultural Heritage as collective marks or certification marks can assist in the promotion and dissemination of Traditional Culture. Besides, the registration of a collective marks or certification marks can be helpful in relation to the attribution and authentication of Traditional and Cultural Heritage and help protect Traditional and Cultural businesses from imitations. 1990년 이후로 전통문화표현물(TCEs/Eof)은 지식재산의 영역으로서 세계지적재산권기구(WIPO) 내에서 논의되었다. 전통문화표현물 보유자들은 제3자에 의해서 전통문화표현물이 사용되거나 등록되는 것을 통제하기 어려울 뿐만 아니라, 전통문화표현물의 사용으로 발생하는이익을 누리지 못하는 것에 대하여 근심을 호소하고 있다. 이러한 점에서 그들은전통문화표현물의 부적절한 사용을 막고 타인에 의하여 자신들의 전통문화표현물이 등록되는 것에 대한 우려를 가지고 있다. 대부분의 경우 산업계나 제3자들은전톰문화표현물을 사용함에 있어 전통문화표현물 보유자들의 동의를 구하지 않고있으며 이익을 공유하고 있지도 않다. 이러한 점에서 전통문화표현물에 대한 적절한 법적보호가 없다면, 전통문화표현물은 전통문화표현물 보유자가 아닌 자본이나 지식을 가진 다른 제3자가 기존의 제도를 통하여 선점되는 결과를 초래할 수도 있을 것이다. 이러한 경우 세대를통하여 전통문화표현물을 계승 발전시켜온 전통문화표현물 보유자 및 관련 공동체 등은 전통문화표현물의 사용으로부터 창출되는 이익으로부터 배제될 것이다. 단체·증명표장제도는 일단 등록되면 반영구적으로 갱신을 통하여 보호될 수있다. 이러한 측면에서 볼 때 단체·증명표장제도는 전통문화표현물 보유자들의우려에 대한 대응책이 될 수도 있다. 전통문화표현물의 단체·증명표장등록은 제3자에 의한 전통문화표현물의 사용을 막음으로써 전통문화표현물 보유자 등의 이익증대에 도움이 될 것이고, 상품에 표장을 부착함으로써 진정한 전통문화상품이라는 인증표시로서의 역할을 통해 일반수요자도 보호할 수 있다. 또한 적절한 마케팅 전략이 수반된다면, 전통문화표현물의 단체·증명표장등록은 전통문화의 보급이나 발전에도 기여를 할 것이며, 시장에서 짝퉁상품을 몰아내고 진정 전통문화상품의 유통활성화를 통한 전통문화산업의 발전에도 도움이될 것이다.