팝업광고와 영업주체혼동행위의 관계에 관한 비판적 고찰

A Critical Study on Relations between Pop-up Advertisement and Acts of Causing Confusion of Business Entities

In the past Korean court cases on determining acts of causing confusion of business entities in acts of unfair competition, there are two interpretation theories, which one is only focusing on likelihood of confusion and the other is distinguishing between ‘use’ and ‘likelihood of confusion’. But in a recent Supreme Court Decision 2009do12238 (Internet-Channel 21 case) it was determined that pop-up advertisement inserting or substituting advertisement images in the web-pages fell under acts of causing confusion of business entities only based on focusing on likelihood of confusion. According to Article 2, Section 1(Na) of the Korean Unfair Competition Prevention and Trade Secret Protection Act, the term “acts of causing confusion of business entities” as “acts of unfair competition” means “acts of causing confusion with another person's commercial facilities oractivities by using signs identical or similar to another person's name, tradename, emblem or any other sign widely known in the Republic of Korea as anindication of commerce”. Therefore, “using signs” and “causing confusion” is provided separately by the above provision. And in United States, a recent ‘trademark use theory’ is explaining independence of ‘use’ apart from ‘likelihood of confusion’. In conclusion, Supreme Court Decision 2009do12238(Internet-Channel 21 case) shows some problems based upon the provision on acts of causing confusion of business entities and recent ‘trademark use theory’. Therefore, this paper critically analyses and examines some problems from the subject case.