중국 상표법상 치명상표의 개념 및 인정방식에 대한 연구

A Study on the Concept and Determination Methods of Well-Known Mark in Chinese Trademark Law

The concept of well-known mark in Chinese Trademark Law isn't definitely understood and it is still difficult for foreigners to understand its concept exactly. Therefore, it is needed to define the concept of well-known mark and study determination methods of Well-known mark in Chinese Trademark Law. China is a party to the WTO, therefore it is committed to TRIPs and WIPO JOINT RECOMMENDATION CONCERNING PROVISIONS ON THE PROTECTION OF WELL-KNOWN MARKS. And thus, an well-known mark can be protected and enforceable effectively. The revised Trademark Act Article 13, 14, effective on December 2001 and the regulation entitled "Provisions on the Determination and Protection of Well-Known marks", effective on June 2003, have helped to recognize Well-Known status of a number of Chinese trademarks. On the other hand, an unregistered trademark, if identified by the Trademark Office as an well-known mark in the relavant sector of the public, is as enforceable as a registered trademark be. And there become to be two main methods to determine Well-Known mark; One is by administrative means if there are oppositions or trials, the other is through the People's Court if there are suits. The Article 13 states that "Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person's trademark not registered in China and likely to cause confusion, it shall be rejected for registration and prohibited from use. Where a trademark in respect of which the application for registration is filed fdr use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use." and the Article 14 states that "Account shall be taken of the fol1owing factors in establishment of a well-known mark: ⑴ reputation of the mark to the relevant public; (2) time for continued use of the mark; (3) consecutive time, extent and geographical area of advertisement of the mark; (4) records of protection of the mark as a well-known mark; and (5) any other factors relevant to the reputation of the mark." And this provisions have accepted relavant provisions of WIPO JOINT RECOMMENDATION CONCERNING PROVISIONS ON THE PROTECTION OF WELL-KNOWN MARKS. This provisions in China leads us to think that it is needed to make the definite standards and concrete method determining Well-Known mark in our Trademark Law. Therefore, I think that Korea Intellectual Property Office also need to make the definite regulations about determining Well-Known mark like the cases of Chinese Trademark Law and regulations.