상표의 유사와 출처의 혼동에 관한 연구 - 판단주체 및 판단시점의 확장을 중심으로 -

초록

This Article critically examines the core infringement standard for Trademark Act and Unfair Competition Prevention Act—the “likelihood of confusion” test. Even though the Trademark Act does not clearly stipulate confusion as a requirement for finding infringement of right, it has become an established view that, if the mark is actually used but not in the manner harmful to a trademark's function to identify the source of origin of goods, infringement should be denied on the grounds that such use of the mark does not constitute the use as a trademark. Infringement of registered marks and unfair competition are governed by the test of whether the defendant's use is “likely to cause confusion.” Most courts, in analyzing a claim of infringement based on both Trademark Act and Unfair Competition Prevention Act, will apply to both a single analysis of the likelihood of confusion issue. If an appreciable number of reasonable buyers are likely to be confused by the similar marks, then there is liability for trademark infringement or unfair competition. When examining whether or not the defendant's use of the mark harms the trademark's function of identifying the source of origin of goods, a question arises as to the scope of consumers or potential consumers who are to be taken into account as the reference targets, or at which point in time these target consumers should be demarcated. The most common and widely recognized type of confusion that creates infringement is purchaser confusion of source which occurs at the time of purchase. However, point of sale confusion does not mark the outer boundaries of trademark infringement. The vast majority of US courts recognize post-sale confusion, which may occur among those who see an infringing mark in use by an owner who were not confused at the time they bought the product. Similarly, initial interest confusion which is dispelled by the time of purchase can also be actionable. The initial interest confusion doctrine has been used to combat a new set of problems for trademark owners which have created by web sites. Initial interest confusion involves infringement based on confusion that creates initial customer interest, even though no transaction takes place. The post-sale confusion doctrine is arguably the most complex and the least understood of the three doctrines, which may be why it is often sidelined in the debate on confusion. Korea courts have recently rendered rulings in which they discussed post-sale confusion or initial interest confusion. Thus far, we have not seen many court rulings that permitted the time extension of the concept of confusion in Korea. Little scholarship has explained the doctrines in depth, so there is no unified view being refuted. Instead, an accumulation of mistakes, borne of a lack of breadth and understanding of the law, need to be corrected. And it is anticipated that the number of court rulings discussing initial interest confusion and post-purchase confusion will increase in the future. Therefore, making a theoretical study on the time extension of the concept of confusion is meaningful to some degree under the Korean trademark Act. In this article, we have clarified through the review of trends relating to post-sale confusion and initial interest confusion. Some movements toward extension of protection under Trademark Act are compatible with the traditional rationale of trademarks, while others are incompatible with it. Such movements toward extension of trademark protection are expected to continue in the future. With this in mind, we should note that there is the risk that the extension of the scope of trademark protection might excessively deter trademark owners' competitors and the general public from carrying out business activities or other activities to display expressions using trademarks.

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