올림픽 지식재산 보호에 관한 연구 : 표지법을 중심으로

다국어 초록 (Multilingual Abstract)

As the biggest event on earth to transcend languages, races, borders, religions, and ideologies, the Olympic Games have a considerable impact on host countries in ways both direct and indirect. The 1988 Seoul Olympics demonstrate how the Olympics can help a poor and unknown country to rise from the ashes of war and become an affluent and well-known country. It leads all the Korean people to put high expectations on the forthcoming 2018 Olympics held in Pyeongchang. However, it's not necessarily true that hosting the Olympics itself brings success and wealth without any effort. Successful Olympics require every aspect of them such as legal systems, facilities, securities, finances, and environment to be thoroughly scrutinized and taken good care of. This thesis, among them, deals with the aspect of Olympic intellectual property and its protection focusing on trademark law, and aims at answering the question of how effectively the property can be protected.
Olympic brand and related intellectual property including symbols and marks enjoy great popularity worldwide, which makes the Olympics the best chance for handsome profit through various marketing activities using the lucrative property and reaching billions of potential customers from a business point of view. The IOC, the owner of the Olympic intellectual property, takes advantage of it and runs official sponsorship programs like the TOP program that allow sponsors to exclusively use the Olympic intellectual property in return for financial contribution to ever increasing cost of the Olympic Games. However, it's never easy to join the program because fees are way too expensive and only a handful of corporations are selected as sponsors. It often triggers non-sponsors who are disinclined to pass up the huge commercial opportunity to seek a free ride and unfairly benefit from using the Olympic intellectual property without payment and the consent of the right holder. Such illegal and unethical conduct can seriously reduce incentives for the sponsorship and result in sponsors' complaints. In the long run, even the continuity of the Olympic Movement and the Olympics can be at stake. That's why the Olympic intellectual property should be well managed.
First, this thesis looks at how the Olympics were initiated, what their basic philosophy is, how they are financed and hosted, and what societal and economical values the Olympics produce. Secondly, it defines the Olympic intellectual property and its international protection system. Thirdly, it examines how Trademark Act and Unfair Competition Prevention and Trade Secret Protection Act protect the Olympic intellectual property right against infringement. Then it overviews recent Olympic-specific legislation host countries have enacted, examines two types of legislation of Korea including Special Act on Support, etc. for Pyeongchang 2018 Olympic and Paralympic Winter Games in comparison with Ted Stevens Olympic and Amateur Sports Act of the U.S. that is famed for its strong protection for the Olympic marks, and investigates what the specific legislation of Korea lacks. Finally, it turns to ambush marketing issues to exploit the image or association of the Olympics usually avoiding using intellectual property. At the beginning, it defines the concept of ambush marketing and explains its harmful effects. Then it moves on to analyze how Trademark Act, Unfair Competition Prevention and Trade Secret Protection Act, and Special Act on Support, etc. for Pyeongchang 2018 Olympic and Paralympic Winter Games etc. function to regulate the ambush marketing and what problems they have. At the last part, it examines solutions such as anti-ambush marketing legislation(Sydney 2000 Games (Indicia and Images) Protection Act 1996, Olympic and Paralympic Marks Act 2007, London Olympic Games and Paralympic Games Act 2006), theories(Event Marks, Housing Rights), and the other measures (the IOC Charter, contracts, public relations).
This thesis concludes that Korea's Olympic-specific legislation is not enough to protect Olympic intellectual property and should be amended to contain Olympic key words of 'Olympic', 'Olympiad' in the list of protected property, adjust monetary penalties for inflation to the extent that it can achieve the goals of prevention and punishment, and insert anti-ambush marketing provisions.

국문 초록 (Abstract)

우리나라는 하계ㆍ동계 올림픽과 월드컵을 모두 개최하게 된 스포츠 선진국 G6(미국ㆍ프랑스ㆍ독일ㆍ이탈리아ㆍ일본ㆍ한국)다. 올림픽은 언어,인종, 국경, 종교, 이념을 초월하여 범세계적으로 펼쳐지는 인류 최대 축제 중 하나로 개최국에 미치는 직・간접적 파급효과가 실로 엄청나다.
우리가 치른 1988년 서울 하계 올림픽을 예로 들면 한국전쟁 이후 암울했던 국가상과 사회상을 완전히 탈바꿈 시킨 중요한 역사적 사건이자 분수령으로서 비약적 경제 성장을 비롯하여 정치・사회, 문화・예술 등 국가 전 분야에 걸친 급속도의 발전을 견인한 계기가 되었다. 이에 4년 뒤 평창에서 두 번째 올림픽 개최를 목전에 둔 국민의 기대가 매우 크다.
그러나 유럽 경제 위기의 뇌관이었다는 비판을 받은 2004년 아테네 올림픽의 사례에서 보듯이 '올림픽 개최는 바로 성공과 부’라는 공식이 성립하는 것은 아니다. 긍정적 파급효과를 창출하는 성공 올림픽 개최를 위해서는 법, 시설, 안전, 재정, 환경 등 제반 분야를 세심하게 점검하며 준비과정에 한 치의 소홀함이 없도록 해야 한다는 의미이다. 이와 관련 본 논문은 올림픽 준비에 있어 지식재산 보호의 측면에 초점을 맞추어 법적보호 현황 점검과 문제점 파악 및 해결방안 도출을 목적으로 연구를 진행한다.

올림픽은 자체가 하나의 거대한 브랜드인데다 연관된 표지 또한 세계적 기업을 능가하는 높은 인지도를 구가하는 까닭에 연계 마케팅을 통한 고수익 창출 가능성이 농후하다. 따라서 올림픽은 대기업부터 소상인에 이르기까지 결코 간과할 수 없는 절호의 기회라 하겠다. 올림픽 지식재산권자인 IOC는 이 점을 활용하여 TOP 프로그램 같은 공식 후원 제도를 두고 점점 증가하는 올림픽 운영비용과 기타 올림픽 운동에 충당할 후원금을 얻는 대가로 스폰서 기업에 올림픽 지식재산의 상업적 사용을 허용하고 있다. 그러나, 고액의 참가비용과 공식 스폰서 숫자 제한은 후원 프로그램 참가의 진입장벽으로 작용하여 다수의 비스폰서 기업들이 올림픽 특수에 불법 또는 탈법적으로 무임승차 하는 원인이 되고 있다. 무임승차는 주로 오륜마크, 올림픽 명칭 등의 올림픽 표지나 이미지를 무단으로 이용하는 양상으로 이루어지는데, 이들 지식재산권의 침해에 대한 대응 실패는 올림픽 후원 인센티브를 감소시켜 스폰서 기업의 컴플레인 유발은 물론 차후 후원 기업 모집에 차질을 초래할 것이다. 종당에는
올림픽의 지속적 개최여부마저도 불투명하게 될 우려마저 있다. 여기에 철저한 올림픽 지식재산 보호의 필요성이 있다 하겠다.

본 논문은 우선 올림픽과 올림픽 지식재산의 의의를 밝히고 올림픽 지식재산의 보호에 대해 표지법을 중심으로 표지의 무단 도용에 의한 직접침해의 경우와 이미지 무단 편승에 의한 앰부시 마케팅의 경우로 나누어 접근한다. 직접 침해는 다시 상표법과 부정경쟁방지법에 의한 일반적 규율과 근래 대세로 자리 잡은 특별법적 규율로 세분화하여 특히 후자는 대표적 올림픽 표지 보호 특별법인 미국의 Ted Stevens Olympic and Amateur Sports Act와
평창올림픽법 등 한국의 특별법을 비교 검토하고 문제점 및 시사점을 밝힌다. 다음으로 지식재산의 직접 사용을 자제하고 교묘히 법망을 피해나가며 부정한(unfair) 수익 창출을 노리는 앰부시 마케팅의 규제에 대해 알아본다. 이를 위해 앰부시 마케팅의 개념, 유형, 문제점, 현행 표지법상의 규제와 한계 등을 살펴보고 현재 제시되고 있는 대응책을 신규 지식재산권인 런던올림픽연계권(London Olympic Association Right)과 Event Zone 및 Relevant event period(periods)의 개념을 설정하여 역대 가장 강력한 앰부시 마케팅 차단 입법으로 평가
받는 영국의 London Olympic Games and Paralympic Games Act 2006와 동 법 Regulations를 위시한 주요 개최국의 특별법 제정 사례, Event Marks 이론, 주거권 이론 그리고 IOC 헌장, 계약 등의 기타 방법으로 분류하여 검토해 본다.

결론적으로 본 논문은 지식재산 및 스포츠 강국의 위상에 걸맞고 효과성면에서도 내실을 기할 수 있는 지식재산법 인프라 구축의 필요성을 염두에 두고 올림픽 지식재산의 직접 침해와 관련하여 올림픽 핵심 표지를 보호 대상으로 명기하고 벌금형을 현실화 하는 한편, 앰부시 마케팅과 관련하여 침해 및 보호 조항을 삽입하는 것을 골자로 평창올림픽 특별법을 개정할 것을 제안한다.

목차 (Table of Contents)

• Ⅰ. 서 론 ······································································· 1
• 1. 연구의 목적 ········································································· 1
• 2. 연구의 내용 ········································································· 3
• Ⅱ. 올림픽의 의의 및 가치 ······································· 5
• 1. 올림픽의 유래와 연혁 ························································· 5
• 2. 올림픽 운영 체제 ······························································· 8
• 가. Olympism ···················································································· 8
• 나. Olympic Movement ··································································· 9
• 다. IOC 및 주요 기구 ······································································ 10
• (1) IOC ······························································································ 10
• (2) IF ································································································· 13
• (3) NOC ···························································································· 14
• 라. 재정구조······················································································· 15
• 마. 개최 프로세스············································································· 18
• 3. 올림픽의 가치 ····································································· 19
• 가. 올림픽의 경제적 가치 ······························································· 20
• 나. 올림픽의 사회적 가치 ······························································· 21
• Ⅲ. 올림픽 지식재산의 의의 및 법적쟁점 ············ 22
• 1. 올림픽 지식재산의 개념 ············································· 22
• 2. 보호체계 ················································································ 24
• 가. 보호주체······················································································· 24
• 나. 보호지침······················································································· 25
• (1) Olympic Charter ······································································ 25
• (2) Nairobi Treaty on the Protection of the Olympic Symbol ·· 26
• (3) Olympic Marks and Imagery Usage Handbook ············· 27
• 3. 법적쟁점 ·················································································· 27
• Ⅳ. 올림픽 지식재산의 상표법적 보호 ·················· 29
• 1. 일반적 규율 ··········································································· 29
• 가. 상표법상 보호 ········································································· 29
• ⑴ 상표법상 침해요건 ·································································· 30
• (가) 등록······················································································· 30
• (나) 등록상표・지정상품과의 동일・유사····························· 31
• (다) 상표적 사용 ········································································· 39
• (2) 구제 ··························································································· 46
• 나. 부정경쟁방지법상 보호··························································· 46
• (1) 부정경쟁행위 해당요건 ························································· 47
• (가) 혼동야기 ··············································································· 47
• (나) 희석화··················································································· 50
• (2) 구제 ··························································································· 54
• 2. 특별법적 규율 ······································································· 55
• 가. 최근 개최국 입법 경향····························································· 55
• 나. Ted Stevens Olympic and Amateur Sports Act ·············· 57
• (1) 제정목적 및 연혁····································································· 57
• (2) 올림픽 지식재산 보호와 § 220506 ····································· 60
• (가) USOC의 올림픽 표지 독점권 ··········································· 60
• (나) 스폰서십과 올림픽 표지 사용··········································· 61
• (다) 올림픽 표지 침해와 민사적 구제····································· 61
• (라) 입증책임의 완화··································································· 62
• (3) 관련 판례··················································································· 63
• (가) Stop the Olympic Prison v. U.S. Olympic Committee, 489
• F.Supp. 1112 (1980) ··············································································· 63
• (나) San Francisco Arts & Athletics, Inc. v. U.S. Olympic
• Committee, 483 U.S. 522 (1987) ························································ 65
• (다) U.S. Olympic Committee v. Intelicense Corp., S.A., 737 F.2d
• 263 (1984) ································································································· 67
• (라) O-M Bread, Inc. v. U.S. Olympic Committee, 65 F.3d 933
• (1995) ········································································································· 70
• (마) U.S. Olympic Committee v. Olympic Supply, Inc., 655
• F.Supp.2d 599 (2009) ············································································· 72
• (바) U.S. Olympic Committee v. Tobyhanna Camp Corp., Not
• Reported in F.Supp.2d (2010) ····························································· 73
• 다. 평창올림픽법 등······································································· 74
• (1) 2018 평창 동계올림픽대회 및 장애인동계올림픽대회 지원 등에
• 관한 특별법······························································································ 74
• (가) 입법취지··············································································· 74
• (나) 규정내용··············································································· 75
• (2) 국제경기대회 지원법····························································· 77
• (가) 입법취지··············································································· 77
• (나) 규정내용··············································································· 78
• (3) 올림픽 지식재산 보호의 한계 ············································· 79
• Ⅴ. 올림픽 지식재산과 앰부시 마케팅 ·················· 81
• 1. 앰부시 마케팅의 의의 ······················································· 81
• 가. 앰부시 마케팅(Ambush marketing)의 개념······················ 81
• 나. 발생원인 ····················································································· 85
• 2. 앰부시 마케팅의 유형 및 특징 ······································ 86
• 가. 유형····························································································· 86
• 나. 특징····························································································· 87
• 3. 올림픽별 앰부시 마케팅 사례 ········································ 88
• 가. 1984년 로스엔젤레스 올림픽 ················································· 88
• 나. 1988년 서울 올림픽 ································································· 88
• 다. 1992년 바르셀로나 올림픽 ····················································· 88
• 라. 1994년 릴리함메르 올림픽 ····················································· 89
• 마. 1996년 애틀랜타 올림픽 ························································· 90
• 바. 2000년 시드니 올림픽····························································· 90
• 사. 2008년 베이징 올림픽····························································· 91
• 아. 2010년 밴쿠버 올림픽····························································· 92
• 자. 2012년 런던 올림픽 ································································· 92
• 차. 2014년 소치 올림픽 ································································· 93
• 4. 문제점 및 규제필요성 ························································· 93
• 가. 불법행위성 ················································································· 95
• 나. 기본권 남용성 ··········································································· 96
• 다. 비윤리성 ····················································································· 99
• 5. 현행법적 규제와 한계 ························································· 101
• 가. 법적 규제 ················································································· 101
• (1) 상표법상 규제와 문제점 ······················································· 101
• (2) 부정경쟁방지법상 규제와 문제점······································· 101
• (가) 영업주체 혼동야기 행위 ··················································· 102
• (나) 희석화 행위 ········································································· 102
• (다) 문제점 ··················································································· 103
• (3) 평창올림픽법 등의 규제와 문제점 ····································· 103
• 나. 대표 판례··················································································· 103
• (1) U.S. Olympic Committee v. American Media, Inc., 156
• F.Supp.2d 1200(2001) ············································································· 103
• (2) MasterCard Int’'l, Inc. v. Sprint Communications Co., 1994
• WL 97097 (S.D.N.Y. 1994) ·································································· 105
• (3) NHL v. Pepsi-Cola Canada, 92 D.L.R.4th 349 (B.C. 1992) ·· 107
• 다. 한계 ······························································································· 108
• 6. 대응방안 ·················································································· 109
• 가. 특별법 제정··············································································· 109
• (1) Sydney 2000 Games (Indicia and Images) Protection Act 1996 ··· 110
• (가) 의의······················································································· 110
• (나) Indicia and Images ··························································· 111
• (다) 입증책임의 완화································································· 113
• (라) 구제······················································································· 114
• (2) Olympic and Paralympic Marks Act 2007 ····················· 114
• (가) 의의······················································································· 114
• (나) 앰부시 마케팅 ····································································· 114
• (다) 입증책임의 완화································································· 116
• (라) 구제······················································································· 116
• (3) London Olympic Games and Paralympic Games Act 2006 ···· 117
• (가) 의의······················································································· 117
• (나) London Olympic Association Right ······························ 117
• (다) Event Zone 및 Relevant event period(periods) ········· 122
• 나. Event Marks ············································································· 124
• 다. 주거권························································································· 127
• 라. 기타····························································································· 128
• Ⅵ. 결론 ··········································································· 130
• 참고문헌 ·········································································· 137
• Abstract ········································································· 151
• 표 목 차
• [표 1] ··························································································· 56