상표와 상호 사이의 법률적 관계에 관한 연구

A Study on the Legal Relationship between Trademarks and Trade Names

Although small merchants are using their trade name in trade, they don’t know much about trademarks and trade names and are little interested in them. A trademark broker who knows these situations and related laws submits to the Commissioner of the Korean Intellectual Property Office(KIPO) the application form for trademark registration and registers trademark right. And then the trademark broker submits a suit for trademark infringement against the small merchants and requests settlement money from them. In other words, they are damaged from the trademark broker. KIPO realized the importance of the problem and revised the Trademark Act in 2013. Namely, a person, who have continually used the trademark in Korea before any other person files an application for the registration of such trademark without any purpose of unfair competition and uses a means identifying the personality such as his/her name or trade name as a trademark according to customary business practice, shall have the right to continuously use the relevant trademark on goods that use the trademark(Trademark Act article 57-3(2)). However, when the trademark broker submits a suit for trademark infringement against the small merchants, they don’t take legally proper measures and are damaged from the trademark broker. The reason is that they don’t understand the Trademark Act, the Commercial Act or the Unfair Competition Prevention and Trade Secret Protection Act in connection with trademark and trade name. This paper wants to clear up legal relationship between trade name which small merchants is using and trademark broker’s trademark right. Accordingly, this paper studies difference between trademark and trade name, applied laws in case of both sides’ conflict and the juridical relation in specific cases. Therefore this paper wants to help small merchants not to be damaged on a false charge.