상표 유사 판단시의 ‘분리관찰’ 개념에 관한 비교법적 고찰

A Comparative Study on the Concept of ‘Separate Observation Theory’ in the Determination of Trademark Similarity

According to the Korean Supreme Court, ‘Impotent element observation theory’ is a method of judging similarity by comparing the marks based on the element of the mark that has independent ability to identify other products. On the other hand, ‘Separate observation theory’ means that if a part of the mark has a separate name or concept, or can be placed in the trade alone, or can be separately observed, similarity of marks can be judged by comparing the component of mark. The key issue of ‘Important element observation theory’ is whether or not the element is important or not. That of ‘Separable observation theory’ is whether or not there is possibility of separate observation. In these respect, the two theory has independent concepts. However, in order for a component of mark to be separable, the component should be important in respect of having independent ability to identify other products, that is, the two theory are indivisible. Therefore, it is necessary to integrate the two theory into one for the efficiency of law enforcement. The concept of ‘separation observation’ is unnecessary, as distinctiveness rather than separability can be regarded as a key factor of determining similarity. The term and concept of ‘Separate observation theory’ is not found in German, European Union, British and American law. The ‘Separate observation theory’ appears to have resulted from Japan s introduction of Germany s ‘impression theory’ in its own country by the re-organization of the phase in which a component could be subject to comparison. In conclusion, it is desirable to accept the legal principle of the major countries, judging on the basis of ‘overall impression taking into account the major parts of the mark’ for increasing the effectiveness of the trademark similarity related judgment. It is also deemed necessary for the Supreme Court to declare termination of ‘Separate observation theory’.