회복저작물의 저작권에 저촉되는 제3자의 등록상표의 사용에 관한 소고

Review on the Registered Trademark Use by a Third Party Conflicting with a Prior Copyrighted Works Restored by Bern Convention

Korean Supreme Court's decision(case NO. 98HU2962) is on the case that the owner of a registered trademark con- flicting with the prior copyrighted works restored its right retrospectively as of July 1st 1996 by Bern Convention has used identical mark with his registered trademark after its restoration without consent of the original copyright owner. Korean Supreme Court rendered that It could not satisfy the requirements of trademark cancellation trial for non-use with the reason that whether it could constitute the copyright infringement is one thing and whether it could satisfy the requirement of "reasonable use" under Trademark Law, Art 73, Section 4 is another. This decision has its own reason in respect of the fact that the defendant filed and registered his trademark beforehand comparing with the effective date of restoration as of July 1st 1996. However, in respect of the fact that the defendant's trademark may be cancelled eventually in the future because an injunction against defendant's trademark may be per- mitted for the reason of the copyright infringement by a civil action. Although the Court does not discuss or examine this point, this article deals some cases including this case with the viewpoint of "reasonable use" under Trademark Law and propose a desirable directions of solving for the similar trademark cases in the future.