사용에 의한 식별력 취득에 있어서 상표의 동일 -대법원 2011후1982 사건을 중심으로- = A study on the identify of used trademark and application trademark under Art. 6(2) of the Trademark Act -mainly focused on Supreme Court Decision 2011 Hu 1982-

다국어 초록 (Multilingual Abstract)

Since the Trademark Act aims to protect the goodwill arising from the use of a trademark capable of distinguishing one` own product and those of others(Art. 1 of the Act), it does not permit the registration of a nondistinctive trademark(Art. 6(1) of the Act). To be more specific, the Trademark Act stipulates that any trademark consisting solely of a famous geographical name(Art. 6(1) 4 of the Act). The institutional intent for prohibiting a trademark from consisting solely of a famous geographical name is to allow anyone to freely use such marks and deny any particular person the exclusive right to use it as it may not be deemed to possess distinctiveness due to it being well-known and famous. An inherently non-distinctive trademark, however, may deserve protection as a trademark and exceptionally permitted to be registered in view of the elements of the prior use principle. The prior use principle states that if the mark has been used by a particular person as a mark for his goods for a long enough period of time and thereby acquired distinctiveness as a trademark indicating the source among traders and/or consumers(Art. 6(2) of the Act). It is not sure criteria for identify of used trademark and application trademark. In other words, It is debatable what exactly Under Art. 6(2) of the Act a trademark itself means, In the case Supreme Court 2011Hu1982, the Court present clear evaluation criterion for identify of used trademark and application trademark. It`s important that the final decision of Supreme Court 2011Hu1982 inceptively has founded concrete criteria of attenuation of inherent distinctiveness for identify of used trademark and application trademark, namely under Art. 6(2) of the Act a trademark itself.