상호권 침해의 사례검토를 통한 권리구제의 실효성 제고에 관한 연구 - 등기상호의 후등기배척력에 관한 최근 대법원판례를 대상으로 -

초록

The examination of Commercial registration has some limitation, as it is unreasonable to have the registering officiary screen all compliance requirements for registration through investigating the business's reality. It is necessary to establish checking devices (corrective action) strictly to these defects, so the Commercial Code Article §22 prescribing the power of canceling the later registration of trademarks is the most important of all. In the view point of the commercial globalization, it is significant for foreign companies to have faith in Korea's registration system and its operation. The trademark's right may be one of the sources to enable the strenuous efforts of the seller or the manufacturer through innovation of quality-improvement. Article 23 of the Commercial Code is even more highlighted at this point. However, the protection of existing trademark pursuant to Article §23 should satisfy two requirements, which are ‘the purpose of fraud,’ ‘may be mistaken for each other’. The protection of the former registered trademarks is regarded as getting worse and worse than before. Though the dispute is inevitable since the Act was amended 2009, the protection should be different in the case of the registered before the Revision. As I think that the Court in this case examined here seems to have considered the actual benefit would be little even though it cancel the registration of the later similar trademarks. The businessman who had registered his trademark before the Revision of the Commercial Registration Act Article §30 in 2009, violated obviously the Commercial Act, Commercial Registration Act (Previously, Non-Contentious Case Procedure Act) in the registration issue. Without any sanction against the trademark registered afterwards having similar or indistinguishable symbol by the mere reason of the Revision of Commercial Registration Act like this case is apt to embrangle the market or produce unfairness. The Revision 2009 of the Commercial Registration Act Article 30 gave birth to weakening the right of registered trademarks obviously, for the revised Act emphases on the other's right to select the new trademark and use it freely. We should worry about the difficulties in stopping the flooding of similar trademarks in the market. So we are to keep in mind the significance to make efforts to enhance the effectiveness of the remedies for the right of the trademark damaged.

키워드