제3자의 포장용기 재활용과 상표권 침해의 위법성조각의 항변

Recycling Use of a Product Package by a Third Party and Plea of Illegality Bar in the Criminal Trademark Infringement Cases

Korean Supreme Court's decision(case NO.2002DO3445) ren- dering that the act of the resale of a recycling camera box by a third party without full clearing of the trademark of the orig- inal owner could satisfy the requirements of Criminal Trade- mark Infringement is based on the Doctrine of Exhaustion. This decision has its own reason in respect of the fact that the alleged infringer exchanged a new film by recycling use of the camera box and resold them. The Court decides that this kind of use is equivalent with a new production without permission of the original trademark owner and thus this kind of resale override the scope of exhaustion. However, in respect of the fact that the alleged infringer also fixed its own trademark on the new package of the camera box and deleted main trademark indication of the original trade- mark owner, this kind of use might has a reasonable justifi- cation through the Plea of Illegality Bar. Although the Court does not discuss or examine this point, this article deals some cases including this case with the viewpoint of plea of illegality bar access and propose a desirable directions of solving for the similar criminal trademark infringement cases in the future.