영업상의 표지로서 상호와 상표에 관한 소고

A Study on Trade Names and Trademarks as Business Marks

The provisions of the article 2, paragraph 1, Na of the Law Governing Prevention of Unfair Competition and Protection of Business Confidentiality (to be called hereinafter as the "Law") stipulate that "it shall be deemed as an act of unfair competition to confuse business facilities or marks with others by using identical or similar marks that are widely perceived in the domestic market to identify certain names, trade names, service marks or else indicating the business of others". Marks are generally supposed to differentiate something from others, divided mainly into human and material ones. Human marks may include names and trade names while material marks may refer to trademarks, service marks, marks for origin and quality, etc. Of these, business marks can be said to be those which indicate business of others. Most important of business marks are trade names and trademarks. Trade names and trademarks are different from each other in terms of legal origins, intentions and contents of application, uncompatible legally in a word. However, a trade name may be used as trademark for the products one deals with, and a trademark, likewise, can be used as the registered trade name. Since the legal protection of the two is commonly aimed at protecting marks in actual transactions, both are common and closely connected with each other in this context and therefore it may be an inevitable consequence to come to a legal deadlock in execution and protection of each right prescribed in the "Law", the Commercial Law and the Trademarks Law. In the floods of advertisement like today, trade names and trademarks tend to be used and fused with each other without difference, causing problems of quasi trademarks and trade names to appear in a try to take advantage of popular trade names or marks. This paper aims to explore the general concepts of a trade name and trademark and to find solution to problems occurred in connection with the deadlock which has been frequently caused from confliction or infringement of trade names and trademarks.