업무표장의 식별력과 유사 여부 판단에 관한 고찰 -업무표장 관련 분쟁 사례를 중심으로- = Study on the distinctiveness and similarity judgments of Business affairs mark -focused on dispute cases of Business affairs mark-

다국어 초록 (Multilingual Abstract)

With awareness-raising of intellectual property rights, nonprofit corporations, such as national or local governments and public authorities or institutions, are trying to improve their reliability and credibility through branding and marketing a mark represented by his work or business. At the forefront of the this branding marks project of nonprofit corporations, there is a business affairs mark which is a specific type of mark in Korea protected through the registration under the Trademark Act. “Business affairs mark” means a mark used by a person engaged in nonprofit business for the purpose of indicating his business affairs (Art. 2 (1) 5 of the Trademark Act). Any person who conducts a nonprofit business in the Republic of Korea is entitled to register a business affairs mark (Art. 4 of the Trademark Act). In particular, nonprofit organizations have consistently interested in the business affairs mark since 2007, the annual number of applications from 2007 to 2013 have got about six or seven hundred. However, dispute cases increase as applications increases. Such as trademarks and service marks, business affairs marks can be protected through the registration under the Trademark Act. Not all identifying business affairs marks are entitled to legal protection. Only certain business affairs marks having a distinctiveness are entitled to legal protection. Rather than goods or services, business affairs marks identify activities for which it is registered. The source identified by a business affairs mark is a a person engaged in nonprofit business. In general, nonprofit organizations file an application for business affairs mark registration with a specimen mark consisted of geographical names and names of an organization or institution that describe something about the business affairs or activities. In such circumstances, this application for business affairs mark registration will be rejected. But such rejection may be occurred by wrong understanding of basic concept of business affairs marks. Doesn`t it suffice to say that business affairs mark is a mark used for the purpose of indicating his business affairs. Nevertheless, our judicial precedent is showing that the business affairs mark have to identify the source according to the article 2 (3) of the Trademark Act. In other words, it is necessary to distinguish one’s nonprofit activities from those of others, despite the nonprofit nature. Furthermore, identical or similar determination has been at the center of a dispute. As is the case of the trademark, a business affairs mark gives rise to proprietary and exclusive rights in relation to the activities for which it is registered, and use by any other person of any mark identical or similar to a registered business affairs mark in relation to any activities identical or similar to the above activities is deemed an infringement. When the activities carried out by the alleged infringer with those of the business affairs mark owner, infringement usually will be found if the marks are sufficiently similar that confusion can be expected. But if the activities are totally unrelated, there can be no infringement because confusion is unlikely. However, the most difficult thing is how we should measure the similarity between services and business affairs or activities. In particular, there is high probability of dispute between business affairs mark and service mark rather than trademark, because both business affairs marks and service marks have immaterial objects. But the difference is business affairs marks have the need to designate one or more nonprofit business affairs or activities, and service marks have the need to designate one or more profit-making business services. For the proximity of the activities in use and function, our judicial precedent is showing that the public will mistakenly assume business affairs and services may be extremely close, in spite of nonprofit natural differences. But it seems likely to me that business affairs and services they are totally different from each other accordingistence of the commerciality. Because the trademark law system is based on profitability, while business affairs marks is based on nonprofit object. Therefore we should reconsider from all angles the issue regarding protection of business affairs marks under the Trademark law system.