공공저작물의 자유이용과 상표권의 충돌 -지방자치단체 마스코트 상표를 중심으로- = The Conflict Between Free Use of Public Works and Trademark Rights — Focusing on the Trademarks of Local Government Mascots —

다국어 초록 (Multilingual Abstract)

A mascot of a local government is an intangible asset funded by public resources, embodying the unique landscape, history, and sentiment of the region. Such a mascot may simultaneously be subject to free use by the general public as a public work under Article 24-2 of the Copyright Act, and to exclusive protection as a registered trademark under the Trademark Act. Since free use merely restricts the exercise of economic rights and does not exempt other rights in the same expression from enforcement, a user may face a structural conflict in which the same act constitutes lawful free use under copyright law while giving rise to the appearance of infringement under trademark law. Current law provides no explicit rule of priority or adjustment between the two rights, Article 92 of the Trademark Act is difficult to apply directly due to its textual premise of separate right holders, and administrative marking systems likewise cannot preclude the exercise of trademark rights.
This article examines the possibility of resolution from three perspectives: interpretive doctrine, legislative reform, and practical rights management. The trademark use doctrine and the abuse of rights doctrine may function as ex post safeguards, but their dependence on case-specific facts and the absence of direct precedent render them insufficient to provide ex ante behavioral guidance. Legislative approaches entail a substantial burden of justification as any avenue necessarily intervenes in the core framework of one or both statutes. Since the direct cause of this conflict lies in local governments' practice of retaining trademark rights without adequately disclosing their relationship to open access, the most realistic response is a phased reform of rights management: beginning with transparent disclosure of usage policies and internal enforcement guidelines, and proceeding to standardized ministerial guidelines and legislative review.
This article examines the possibility of resolution from three perspectives: interpretive doctrine, legislative reform, and practical rights management. The trademark use doctrine and the abuse of rights doctrine may function as ex post safeguards, but their dependence on case-specific facts and the absence of direct precedent render them insufficient to provide ex ante behavioral guidance. Legislative approaches entail a substantial burden of justification as any avenue necessarily intervenes in the core framework of one or both statutes. Since the direct cause of this conflict lies in local governments' practice of retaining trademark rights without adequately disclosing their relationship to open access, the most realistic response is a phased reform of rights management: beginning with transparent disclosure of usage policies and internal enforcement guidelines, and proceeding to standardized ministerial guidelines and legislative review.