위치상표의 출원 및 등록적격 심사를 둘러싼 제 문제 : 대법원 2012.12.20.선고 2010후2339 전원합의체 판결 = Matters on an application of a position mark and examining suitability of registration -Supreme Court en banc Decision 2010Hu2339 decided December 20, 2012

다국어 초록 (Multilingual Abstract)

Until the present, the Supreme Court had a decision to seem to acknowledge a position mark to an applied mark in the time when a system of disclaimer has existed. And since the system of disclaimer has been abolished, there are some cases to acknowledge a position mark to the applied mark. Except the cases, however, it did not acknowledge a position mark. Finally, Supreme Court decided first en banc Decision to acknowledge explicitly a mark applied by Adidas as a position mark on December 20, 2012. A position mark is being protected as a type of mark in USA, EU, and Germany. Whereas the Republic of Korea has handled it as a general mark. KIPO, however, seeking to the advanced system of mark, will join in the internationalization with other developed countries according to this decision applicable. On the other hand, unexpected problems have been encountered accordingly. Two of them are as in the following. First, when applying a position mark, it should indicate the shape of goods with dotted or broken lines and the mark of specific part with solid lines in section of trade sample. On this matter, the question is whether it is same to the practice of disclaimer that any rights would not be insisted concerning part of shape indicated with broken lines. However, when disclaiming all of the broken lines, there is possibility not to figure out the range of right at all regarding 'position'. Accordingly, it should be figured out that this broken line is used for convenience's sake to specify 'position', rather than for the practice of disclaim. Second, the data base(DB) of mark should be organized. Before the decision applicable, the mark, which seems to be a position mark, has ever been registered as a general mark, a three-dimensional mark, and color mark because it is decided to have distinctiveness based on the incomplete system, and it has sometimes been refused because it was handled as the shape of goods. We even do not exactly know statistics on other types of mark as well as an applied position mark to KIPO accordingly. Therefore, the data base(DB) of mark should be organized in order to keep examination consistent by applying coherently the standard of examination to the type of mark. It also needs to search customers like applicants. It needs to organize an applied mark or a registered mark needs for the trust to the DB of mark as well.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 대상판결의 경위
• Ⅲ. 대상판결의 쟁점별 평석
• Ⅳ. 대상판결에 따른 과제
• Ⅴ. 결론
• 참고문헌
• Abstract