TPP에서의 비전형적인 상표에 관한 연구

초록

The Trans-Pacific Partnership (TPP) is a proposed trans-regional free trade agreement that is currently being negotiated by twelve countries throughout the Asia-Pacific region. Member countries intended to complete negotiations by 2012, but contentious issues such as agriculture, intellectual property, services and investments have caused negotiations to continue into the present. Korea considered joining in November 2010, and was invited to the TPP negotiating rounds by the US after the successful conclusion of the Free Trade Agreement between the United States of America and the Republic of Korea in 2010. Korea had already signed bilateral trade agreements with some TPP members, but areas such as vehicle manufacturing and agriculture still need further negotiation, making further multilateral TPP negotiations somewhat complicated. The proposed U.S. IP chapter greatly exceeds the imperfect yet more balanced provisions codified in the 1994 WTO Trade‐Related Aspects of Intellectual Property Rights Agreement(TRIPs). TPP Article 2.1 will expand the mandatory scope of trademark protection by deleting the TRIPs Article 15 flexibility that a country “may require, as a condition of registration that a sign be visually perceptible.” It additionally prohibits a party from denying “registration of a trademark solely on the grounds that the sign of which it is composed is a sound or a scent.” This provision is identical to Article 18.2.1 of the Korea US Free Trade Agreement(KORUS) and incorporates the scope of trademark subject matter under § 45 of the U.S. Lanham Act. The latter has been interpreted to include, inter alia, colors per se, 2D/3D designs, motion marks, sound, scent, and non-visual marks. The risk of the provision is that by removing the requirement that a trademark be a visual mark, it will carry other countries along the U.S. path of transforming trademark law into a type of general(and perpetual) monopoly protection, including products that cannot obtain copyright or patent protection.

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