상표권 의제침해와 형사처벌 규정의 문제점과 개선방안

초록

Once a trade mark right has been established by registration, the owner enjoys the right of exclusive use of the registered trade mark on the designated goods (Article 89), and to exclude others from using a mark identical with or similar to the registered trade mark with respect to goods or services that are identical with or similar to the designated goods of the registered trade mark(Articles 107 & 108). The act of using a trademark that is identical with or similar to a third party’s registered trademark on goods, which are identical with or similar to the designated goods of the registered trademark, constitutes ‘direct infringement’. According to the Trademark Act, trademark infringement and remedies are subject to criminal punishment without distinguishing between infringements of use in the same or similar domains and preliminary and contributive acts of infringement. Regarding trademark infringement, Article 230 of the Trademark Act stipulates that “acts that infringe trademark rights” are subject to criminal punishment. In each subparagraph of Paragraph 1 of Article 108 of the Trademark Act, infringement of similar scopes (subparagraph 1) and preliminary acts (paragraphs 2, 3, and 4), which are the types of 'infringement (fictional infringement)' are enumerating. However, the Trademark Act does not specify whether the offense of infringement (Article 230) applies to the violation of the agenda, specific punishment requirements, or sentence. Moreover, even though the Trademark Act does not have provisions to punish attempted offenders, punishing the previous stage of an attempted offender can be viewed as an extended interpretation contrary to the criminal justice system. In addition, it is necessary to take a separate approach to infringements of similar scopes and preliminary acts because their nature and legislative purpose are different. In relation to the application of the trademark infringement crime, Article 230 of the Trademark Act vaguely stipulates that the offense of trademark infringement is infringement, which may violate the principle of the criminal justice system. Therefore, it is necessary to clearly stipulate the types of infringement that require criminal punishment to conform to the principle of the criminal justice system, and to revise the Trademark Act to reflect this in the penalty regulations. This thesis proposes policy alternatives to improve matters that need to be amended by deriving institutional shortcomings related to criminal punishment for trademark infringement, and furthermore, specifically stipulates punishment requirements to comply with the 'principle of clarity' of the criminal justice system.

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