상표법상 절대적 거절이유의 국제적인 표준화에 대한 연구

Study on the International Standardization of Absolute Grounds in Trademark Law

The aim of this paper is to study on the Internataional Standardization of Absolute Grounds in Trademark Law. The absolute grounds of refusal that a sign must fulfil in order to function as a trademark are reasonably standard throughout the world according to Paris Convention. However, the practical application of these absolute grounds of refusal may differ from one country to another, depending on the specific legislation and trademark registration system. Generally speaking, two different kinds of absolute grounds of refusal can be distinguished. The first relates to the basic function of a trademark such as non-distinctiveness, non-descriptiveness, non-functionality, namely, its function to distinguish the products or services of one enterprise from the products or services of other enterprises. From that function it follows that a trademark must be distinguishable. The second kind of requirement relates to the potential negative effects of a trademark if it is deceptive or if it is contrary to public order or morality. These two kinds of these requirements exist in practically all national trademark laws. They also appear in Article 6quinquies(B) of the Paris Convention for the Protection of Industrial Property(Paris Convention), which states that trademarks enjoying protection under Article 6quinquies (B) may be denied registration only if "they are devoid of any distinctive character" or if "they are contrary to morality or public order and, in particular, of such a nature as to deceive the public." Regardless of the absence in Article 6ter of the Paris Convention of a reference to the names of States, the majority of the world's countries have appropriate standards in their national trademark legislation, which allow the issue of protection of these names to be resolved. On the other hand, with regard to other aspects relating to the proposal on Article 6ter of the Paris Convention, these may be discussed as an agenda item on Article 6ter of the Paris Convention at the WIPO SCT. In Conclusion, WIPO will hold discussions on the Internataional Standardization of Absolute Grounds in Trademark Law such as the above continuously, taking into account the respective legislations of the members.