초록 일부
As of the amendment of trademark law on August 22, 1997, the three-dimensional trademark system came into force in Korea on March 1, 1998. Traditionally trademark was two-dimensional trademarks suc...
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초록 전체
As of the amendment of trademark law on August 22, 1997, the three-dimensional trademark system came into force in Korea on March 1, 1998. Traditionally trademark was two-dimensional trademarks such as sign, character, figure etc. However, along with the standardization and equalization under the system of mass production, the industry started to differentiate their goods from that of their competitors by providing its features in respect of function as well as non-function.
As these efforts has dispersed to the area of the trademarks as well as the goods, the industry started to become interested in developing three-dimensional trademarks in addition to the traditional trademarks. Looking upon the current market trends, we can figure out the increasing number of three-dimensional trademarks such as mascots of fast food franchises, emblems of the vehicles, packages of the photographic film, the bottles of beverage. And we notice that these new trademarks are being used as a tool to distinguish the goods among the consumers.
Therefore, we adopted the three-dimensional trademark system to accomodate the demand from the industry. Such adoption also was to prepare for the Madrid Protocol for the International Registration of Marks, Trademark Law Treaty that have the provisions for the filing of three-dimensional trademarks. These developments also result in the expanding the subject matter of trademark in Korea. And, we could also reflect the trends of trademarks protection in developing countries such as USA, EU, Japan. So, we prevent potential trade conflict with such countries.
The three-dimensional trademark means, mark consists of three dimensional shapes that include the shape of the goods and the package of the goods. On the one hand, it has an affirmative effect in a way that it is to reflect the demand of the trademark system by expanding the subject matter of trademarks. On the other hand, the three dimensional trademarks, which are related to the shape or package of the goods, result in the permanent monopoly control over a outside design which protection would be of limited period when they are protected under the patent, the utility model, and the industrial design. Under this situation, the third parties can be restrained or limited to employ similar outside design in developing new products due to the right of trademarks. This may result in the discouragement of competition in the market.
By the way, trademark law has been developed in the area of two-dimensional trademarks such as sign, word, and figure. So the provisions concerning the requirement of 3-D trademark registration has adopted that of two-dimensional trademarks. However, basically the three-dimensional trademarks, which consisted of the shape of the goods and the shape of the package, has the different features from the two-dimensional trademarks. So to speak, the traditional trademarks carried out their function, which is to distinguish the goods and represent the origin of the goods, by attaching on the goods or the package, but the three-dimensional trademarks is the goods or the package itself.
Therefore, three dimensional shape has very weak status as the trademarks acting distinguish the goods from the view of the consumers. Moreover, the goods and the package registered as patent, utility model, or industrial design can have conflict with the three-dimensional trademarks, and these conflict can also cause the irreconcilable disputes in the market as well as in a court.
In addition, these disputes can be the cause of the barrier of free use of good technology and good design. Finally, it can impair the advancement of the industry. Therefore, Korean Trademark Law has the provision, Article 7. 1. 13 having the purpose as follows; the three dimensional shape having the legal function can not be registered to enable the competitors to use freely and to protect the public interest, related industry from the abuse of the rights.
However, the three dimensional shape having the distinctiveness, but not having the legal function, can be registered as a trademark. Meanwhile, the public can not use registered three dimensional shape even though the other kind of rights already terminated, especially to the industrial design right. In case the owner of registered industrial design is different from the owner of registered trademark later, according to Trademark law Article 53, the owner of trademark must have the permission to use the registered design right, but the owner of the trademark can monopolize his right for unlimited period if the industrial design right terminated already.
Therefore, we need to recognize that three dimensional shape should not be registered as trademark, if the consumer does not conceive it as the sign of distinctiveness notwithstanding its creativity. If we don't require the three dimensional shape to have the strict distinctiveness for the trademark registration, the 3-D trademarks may well produce negative effects rather than positive effects. This may lead to the collapse of industrial property system which would result in withering of the industry due to the trademark omnipotent phenomenon.
For these reasons, the registered three dimensional shape must meet the special requirements, which is in many respects different from the traditional trademarks; sign, word, figure etc. The authorities must conclude the affirmative criteria by amending the trademark law, especially examination guideline not to make confusion during examination, trial examination, and litigation through the sufficient review of the difference of the non three-dimensional trademarks and three-dimensional. Furthermore, the authorities should apply the very strict standard regarding the legal function and distinctiveness as trademark to the registration of the three-dimensional mark.
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