사용에 의한 식별력 입증에 관한 소고

A study on the proof of Distinctiveness acquired through use

Determining whether a particular mark has acquired distinctiveness is a matter of the fact finder. Especially such perception is not about the general public, but about the perception of the consumers who are buyers of the product. Whether a particular product is distinctive is something up to whether the consumers perceive the mark as being distinctive. Therefore, as a result of using the mark before registering as trademark, if that particular mark has been distinctively recognized as a mark associated with a particular product, that certain product could be set as a designated good to be used to help register the trademark. According to Korea's Trademark Law Article 6 Clause 2, even if a mark falls within the definition of Article 6 Clause 1 Part 3 through Part 6, if the mark has been distinctively recognized as part of a particular product of a business to the consumers, the product that uses such mark could be a designated good that could be used in help registering the trademark. In addition, the trademark laws of U.K., U.S.A. and Germany also recognize by law that the distinctiveness between a seller's and others' product is created by using them. As such, acquiring distinctiveness is commonly defined in the trademark law of each country. With regard to the evidence of distinctiveness acquired through use, the Guidelines on the Examination of Trademarks in Korea state only indirect evidence, while major foreign countries accept not only indirect evidence but also the direct evidence such as consumer surveys on trademark. Proving the distinctiveness acquired through use is to show the intangible values in trademarks such as trademark user's credibility in business and the interest of consumer by proving the existence of distinctiveness. In addition, in proving the distinctiveness acquired through use, the direct evidence offers the direct method of proving as it proves the associations in the minds of consumers and the value embodied in trademarks. Therefore, for the trademark system in South Korea, there is still a need to prove the distinctiveness acquired through use by using the direct evidence.