상표권 남용 법리의 재고찰

The Rethinking on the Principle of Trademark Misuse

It is specified that Korean Trademark Act completes the appeal-for-invalidation procedure of the trademark registration prepared independently when a registered trademark corresponds to a fixed reason, and can repeal the registration. Therefore, a trademark is not invalid if the trial decision of repealing by such judge of Korean Intellectual Property Tribunal does not become final and conclusive, although there are registration grounds for invalidation even if, since it was registered for a while. However, if the trademark which can not satisfy regulation of Trademark Act about trademark registration, and can not obtain registration is wrong, and is registered as a trademark, or it is after trademark registration and registration grounds for invalidation occur, only the trademark registration is only maintained formally. By the way, it not only damages unfairly monopoly and the public interest relevant to use of 'trademark if it enables it to use exclusively without special restriction of a trademark right, but it is arranged at the purpose of Trademark Act. Moreover, you have to use so that a trademark right may also suit the above one definition of private property rights. therefore, the trademark holder use a trademark being formally registered as a trademark, although there is no value clear trademark registration invalid and protected legally injunction on infringement or, Enabling it to charge reparations etc. gives a trademark holder unjust profits, and it only inflicts an irrational pain and damage on the person using the trademark. Therefore, you have to conclude that the Article 2 abuse-of-right prohibition provision of Civil Code can deny the effect of such an opinion. However, it has a problem that the court which takes charge of an infringement litigation without completing the procedure of an appeal for invalidation for the judgment about the registration invalidity of the trademark registered through examination of the Patent Office does psychology and judgment of to the invalid existence of trademark registration. Therefore, it must be prudent at the point that there may be an arbitrary interpretation of the court which disregarded the current law system.