한반도 모양의 지도 도형이 포함된 상품 표지를 사용한 경우의 상품주체 혼동행위 여부에 대한 고찰

A Study on an Act of Causing Confusion as an Indication of Another Person's Goods in Using Indication of Goods Containing a Device in the Shape of the Korean Peninsula Map

The issue in this case is whether what the defendant used a device in the shape of the Korean Peninsula map as the indication of goods an act of causing confusion as an indication of another person's goods in Unfair Competition Prevention Law is or not. Unfair Competition Prevention Law Article 2, (1) (Ga) provide the basic context for an Act of Causing Confusion as an Indication of Another Person's Goods. According to Unfair Competition Prevention Law Article 2, (1) (Ga), this Act means an act of causing confusion with another person's goods by using marks identical or similar to, another person's name, trade name, trademark, or container or package of goods, or any other mark indicating another person's goods, which is widely known in the Republic of Korea(well-knownness, similarity, confusion). The plaintiff's indication of goods containing a device in the shape of the Korean Peninsula map didn't obtain well-knownness by not being well-known widely as indication of goods among general traders and consumers. And the plaintiff's indication of goods is not similar to the defendant's indication of goods because a device in the shape of the Korean Peninsula map that isn't distinctive should be excluded from similarity judgments between the plaintiff's indication of goods and the defendant's indication of goods. In conclusion, the plaintiff's indication of goods is not well-known and is not similar to the plaintiff's indication of goods. Therefore, Seoul High Court decided the defendant's use of indication of goods have not caused confusion among general traders and consumers. Also, the Court decided device in the shape of the Korean Peninsula map didn't have the secondary meaning by the plaintiff's use of the device. I think that the defendant's use of the indication of goods was not an act of causing confusion as an indication of another person’s goods in Unfair Competition Prevention Law and the above Court's decision was proper. I think it is significant that the decision of this case suggests concrete guidelines on determining whether the use of the indication of goods containing device in the shape of the nondistinctive map is an act of causing confusion as an indication of another person's goods or not.