식별력의 본질에 관한 법적 해석의 비교법적 고찰

A Comparative Study on Legal Interpretation of the Essence of Distinctive Character -Focusing on interpretation of the judicial precedents in Japan-

This article relates to Legal Interpretation of the Essence of Distinctive Character. In most countries' instances, some grounds for refusal such as lack of distinctiveness and descriptiveness overlap(simultaneously applicable) but even in this case the grounds may not be mixed but must be given a separate reasoning. In particular, in the case of word marks having a semantic meaning, the examination shall start with descriptiveness, and in a separate paragraph lack of distinctiveness should be addressed, clearly mentioning whether the lack of distinctiveness arises out of the same, or different, considerations, than those which lead to considering the mark descriptive. But, on determining whether a mark is not distinctive or descriptive, a character distinguishing the origin of the product from those of other traders and needs of free use should be considered together and distinguished. By doing so, we can determine correctly whether a mark is not distinctive or descriptive.