일본 특허청에서의 새로운 형태의 상표의 도입방안에 대한 비교법적 고찰

A Comparative Study on Ways Introducing the new types of trademarks in Japan Patent Office

Several conventions state that "Members may require, as a condition of registration, that signs be visually perceptible". In other words, it does not contain a mandatory requirement for Members to register and protect trademarks consisting of non-visible signs. In some jurisdictions, the issue of graphical representation is dealt with separately, particularly in countries where a condition for registration is that a sign be "represented graphically". The requirement of graphic representation of trademarks has given rise to questions of interpretation in jurisdictions that apply this requirement, in particular with respect to certain non-visible marks, such as sound marks not consisting of musical sounds, or smell marks. In accordance with the jurisprudence of some countries, for example, a graphical representation of a trademark in order to be acceptable must be clear, precise, and complete by itself, easily accessible, understandable, durable and objective. In Japan Patent Office, several subjects on the new types of non-traditional marks are being studied. Korean Intellectual Property Office has already accepted motion marks, hologram marks and color marks in 2007 but has not yet accepted smell marks and sound marks. And Japan Patent Office has not yet accepted the new types of non-traditional marks. On the other hand, we can find out several points overlooked about modifying Trademark Act when analyzing the report of Japan Patent Office. Therefore, we need to review non-traditional marks' systems already accepted by Korean Intellectual Property Office as well as smell marks and sound marks through reference to Japan Patent Office's report. In Conclusion, Korean Intellectual Property Office should consider all contents on the report of Japan Patent Office, in order to minimize several legal problems about the new types of non-traditional marks.