상표 희석화 이론의 적용 요건에 관한 검토

The Application of The Trademark Dilution Theory

The dilution theory is a doctrine to protect the property value of a mark, that is, it prohibits injury to property value like trademark owner's credit and reputation by use of similar mark to a famous mark. The essence of dilution of a mark is to injure consumers' association with a unique and single mark by use of similar mark to a famous mark. It means that the key hallmarks of dilution was the degree of fame of the plaintiff's mark, the degree of uniqueness of the plaintiff's mark and the degree of similarity of the defendant's mark. Likewise, famousness, sameness and uniqueness are key points at the application of the trademark dilution theory on Unfair Competition Prevention and Trade Secret Protection Act. That means that only the trademarks famous to the whole consumers can be worth protecting, and that only using essentially same mark as such famous trademark that actually injures unique association with consumers and the trademark can be deemed diluting act on Unfair Competition Prevention and Trade Secret Protection Act. Ultimately, the key is to what extent the dilution theory can be and should be applied. This is a potent legal tool, which must be carefully used as a scalpel, not a sledgehammer. In conclusion, the dilution theory should be constructed and applied to balance the interest of famous mark's owner with that of the public and to harmonize free competition with fair competition